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FBAnewsletterSummer 2015 Federal Bar Association - Eastern District of Chapter - 57 years of service to our Federal Bench and Bar

Saul Green Honored with President’s Column Civility Award at Annual Dinner Thomas M. Schehr

The 36th Annual Dinner Honoring the Judicial The Chapter has completed Officers of the Eastern District of Michigan was held another successful year. on June 25 at the Westin Book Cadillac. The event was As my term as President a huge success, and a great opportunity to once again concluded with the Annual honor the judicial officers and raise funds to benefit the Dinner, there are many people who I would like to thank Federal Bar Foundation. for their contributions to the After his welcoming remarks and introduction of Chapter. the 18 judicial officers in attendance, out-going Chapter First, I want to thank the Court. Without the president Thomas Schehr introduced Chief Judge outstanding support and participation from the Gerald E. Rosen, who offered a few opening remarks. Bench, our Chapter would not be nearly as Chief Judge Rosen thanked Schehr for his service, and strong. As just two recent examples, fifteen recognized one of the strengths of this Chapter—the judges attended the Annual Dinner on June 25, dedication of its members, including the bench and the and eleven attended our Bench-Bar Outing on June 8. Chief Judge Gerald E. Rosen deserves bar. special recognition for his substantial assistance Chief Judge Rosen turned the microphone back with the Chapter’s hallmark Luncheon Program over to Schehr, who conducted the official business for and for his support of other programs and events the evening. The Chapter elected the proposed slate of throughout the year. offi ers and board members, and Schehr then turned over Second, my predecessor Michael K. Lee was a leadership of the Chapter to Kim Altman. terrific leader and left the Chapter in an excellent As h a s position following his term. More importantly, he b e c o m e was a great friend and mentor. We are honoring Michael’s legacy by renaming the annual event INSIDE THIS ISSUE tradition, Altman known as “Celebrating our Diverse Bar” in Rutter Seminar pg. 2-3 asked Executive his name, with support from many other bar Juries Presentation pg. 3 Director Brian associations who participate in the event. Figot to come Third, our Executive Director Brian Figot Supreme Court Review pg. 3-5 to the stage to deserves high praise. Brian provided meaningful Judge O’Meara Portrait pg. 6-7 present several advice and counsel throughout the year, as well as a steady hand as we redesigned our website (www. Dave Weaver pg. 7 books for Schehr to read during fbamich.org). Brian has also been a wonderful Magistrate Judge Patti his newly found resource in terms of historical knowledge of the Investiture pg. 7-8 Chapter and District. The Chapter is fortunate to free time now Gilman Award pg. 10 have him. that he is no Fourth, I have had the pleasure of serving with Veterans Treatment Courts pg. 10 longer Chapter a talented group of officers. My successor Kim president. Altman will be a great President, and I know she Diggin’ Diversity pg. 11 Among this has some ideas that will Law Day pg. 11-12 year’s finds take the Chapter to new heights. The other officers WINNER Book Club pg. 12 were a primer on ethics, and – Susan Gillooly, Jeff Appel, 13 YEARS and Saura Sahu – made National FBA Bench/Bar Outing pg. 13 a biography of significant contributions Outstanding Superfund Webinar pg. 13-15 Michigan’s boy to the Chapter and will Newsletter Awa r d Calendar of Events pg. 15 (continued on be more than capable of page 2) (continued on page 2) 1 President’s Column (continued) leading it in the future. Our new Program Chair for 2015-16 will be Matt Lund, who has done excellent work with the Bench-Bar Outing. Fifth, our committee co-chairs have had an extraordinary year. Virtually every committee was responsible for a program this year, some of which were recorded and have been posted on our website. I want to make special mention of three committee co-chairs – Erin Behler, Susan Asam, and Nathan Dupes – who were responsible for multiple programs, including our Summer Program that will occur for the second year in a row at Fountain Bistro in Downtown on July 21. Erin, Susan, and Nathan were deservedly installed as new Board members of the Chapter at the Annual Dinner. Sixth, I’ve extolled the work of Computing Source in a prior column, but I want to reiterate Brian Figot, incoming Chapter President Kimberly that the Chapter is grateful for the services that Altman, and outgoing President Thomas Schehr it has provided over the last year on a pro bono at the Annual Dinner. basis. The redesigned website would not have Photo by John Meiu, courtesy of Detroit Legal News Publishing LLC. happened without Computing Source. Last but certainly not least, thank you to the entire membership for giving me the opportunity to serve the Chapter. It has been a rewarding Rutter Seminar Overview and satisfying experience. The theme for The Rutter Group’s annual federal practice seminar this year was magic tricks. On June Annual Dinner (from page 1) 25, 2015, Chief Judge Gerald E. Rosen, Judge David M. Lawson, James M. Wagstaffe of Kerr & Wagstaffe governor, Stevens T. Mason. LLP, and Thomas W. Cranmer of Miller Canfield held The Chapter then turned to the main event, as Judge a panel discussion titled “Ten New ‘Magic Tricks’ For Levy made her way to the stage to present the Julian Federal Practice: Making Cases Disappear (or Not) in Abele Cook, Jr.-Bernard A. Friedman FBA Civility Federal Court” before a crowd of judges, law clerks, Award to Saul Green. Judge Levy first spoke about the and attorneys at the Westin Book Cadillac Hotel. The namesakes of the award—Judges Cook and Friedman. panel discussed a variety of issues touching upon federal She then spoke about Green’s distinguished career, practice, devoting a substantial amount of time and his service to the public and the bar, and above all, his comment to removal and remand, personal jurisdiction, unwavering focus on civility. and the continuing implications of Twombly and Iqbal. Green was presented with a plaque honoring his The panel gave the assembled group a number of achievement. He thanked his wife for all of her support, hypotheticals and discussed their responses as to how without which none of his accomplishments would have each should be handled. The discussion started with a been possible. He also expressed special gratitude to removal and remand issue, in which the panel considered Judge Ralph Guy, Jr. who, as then-United States Attorney the intricacies of complete diversity, both in the context for the Eastern District of Michigan, hired Green as of an individual, a limited liability corporation, and an Assistant United States Attorney. The Chapter pursuant to the Class Action Fairness Act. In particular, congratulates Saul Green on his accomplishments. the panel considered whether an action could be Special thanks to go to Annual Dinner co-chairs removed on diversity grounds, even where the state court Michael Blalock, Linda Hylenski, Kevin Fanning, complaint did not set forth an amount in controversy. and Jason Klingensmith. We look forward to seeing The panelists pointed the group to Shupe v. Asplundh everyone at next year’s Annual Dinner. Tree Expert, Co., 566 F. App’x 476, 478 (6th Cir. 2014),

2 involving a case removed from Kentucky state court to Professor Sharri Diamond federal district court, despite a Kentucky Rule of Civil Presents on Juries Procedure forbidding the plaintiff from stating a specifi amount in controversy. The court concluded that the On June 19, the Chapter and the Fellows of the action was properly removed because the defendant American Bar Foundation co-sponsored a luncheon proved the amount in controversy by a preponderance program entitled “The Deliberations of Real Juries.” The of the evidence. The panel noted that plaintiffs who featured speaker was American Bar Foundation Research want to remain in state court could plead a sum certain Professor Sharri Diamond, who spoke in Room 115 of in the complaint and defendants who want to remove the Courthouse to a large crowd of judges, lawyers, and should engage in discovery as to removability, because law student interns. they will have 30 days to remove from the time when Professor Diamond is a nationally known expert the case becomes removable. on juries. She presented her research, which is based As to Twombly and Iqbal, the panel directed the on the videotaped deliberations of fifty juries in civil group to Levitt v. Yelp! Inc., 765 F. 3d 1123, 1127 (9th cases. She discussed her findings on topics such as juries’ Cir. 2014) and described the circumstances: a small understanding of jury instructions, how they deliberate business filed a federal lawsuit against Yelp, an online and discuss the facts of each case, the juries’ applications directory that allows registered users to post reviews of the law in each case, and how they come to verdicts. and rank businesses on a scale of one to five stars. The She fielded numerous questions from the audience, who small business alleged in the complaint that Yelp extorted appreciated the opportunity to learn more about how or attempted to extort advertising payments from it by juries function, which is an enormously important topic manipulating user reviews and penning negative reviews for those who practice in a courtroom. of their business. The Ninth Circuit concluded that the plaintiff could not survive a motion to dismiss because it failed to sufficiently allege extortion in the complaint. Supreme Although most of the group questioned the reasoning to some degree, Wagstaffe gave the group a practical tip to Court Review M Bryan Schneider survive a motion to dismiss: a complaint should plead enough facts to show it is not just a suspicion. The event The October 2014 Term was full of similar practical pointers for the assembled ended as usual, with several practitioners. closely divided decisions on The panel also described proposed changes to the cases of great public interest, Federal Rules of Civil Procedure and the Federal Rules most notably its decisions of Evidence. Of particular note, the timeline for service in the gay marriage and under FRCP Rule 4(m) and for issuing a scheduling order “Obamacare” cases. Typical pursuant to Rule 16(b) would be shortened from 120 of every term, however, the bulk of the Court’s work days to 90 days. There are also potential changes to the consisted of important decisions in cases impacting the discovery rules, including a change in the description day-to-day work of federal practitioners. of the scope of discovery to require that the discovery On its civil docket, the Court decided an important be proportional and to allow service of Rule 34 requests evidence issue in Warger v. Shauers, holding that Rule related to electronically stored information prior to the 606(b)’s prohibition on juror testimony to inquire into the Rule 26(f) conference. Potential changes in the FRE validity of a verdict applies even where a party alleges include a clarification that the hearsay opponent has the that a juror lied during voir dire. The Court also decided burden to show a lack of trustworthiness in the hearsay two issues of appellate procedure, holding that a party exceptions recognized in Rules 803(6), (7), and (8). If need not file a cross-appeal to defend a judgment on an the proposed changes are approved, they will go into alternative ground, even where that alternative ground effect in December 2015. was rejected in the lower court (Jennings v. Stephens), In all, the panel highlighted a myriad of changes to and that where all of an individual’s claims are dismissed federal practice and did so in an informative, entertaining, from a consolidated multidistrict litigation case, the party and practical manner. It continues to be a must-attend may immediately appeal (Gelboim v. Bank of America). event for those who practice in the federal courts. In Dart Cherokee Basin Operating Co. v. Owens, the (continued on page 4) 3 Supreme Court Review (from page 3) The Court also decided several important cases involving federal statutory rights outside the civil and Court ruled that a defendant’s notice of removal under employment rights contexts. In Armstrong v. Exceptional § 1446(a) need not be accompanied by an evidentiary Child Center, the Court ruled that Medicaid providers submission that the amount in controversy exceeds the do not have a private right of action to enforce the Act jurisdictional threshold; plausible allegations suffice through a lawsuit. In United States v. Kwai Fun Wong, the In substantive civil matters, the Court decided a Court held that the Federal Tort Claims Act’s time limits number of civil rights and discrimination cases. In for filing suit are subject to equitable tolling. In Kellogg Young v. United Parcel Service, the Court held that the Brown & Root Services v. United States ex rel. Carter, familiar McDonnell Douglas framework for analyzing the Court held that the False Claim Act’s “first-to-file discrimination claims under Title VII applies to claims bar applies to a second-in-time claim only while the firs brought under the Pregnancy Discrimination Act. In claim is still pending. In Integrity Staffing Solutions v. Title VII cases, the Court held that the EEOC’s statutory Busk, the Court held that time employees spend waiting conciliation obligation is subject to judicial review, to undergo security screenings at the end of the day is limited to ensuring that the Commission has given not compensable under the Fair Labor Standards Act. In the employer notice and an opportunity to achieve Jesinoski v. Countrywide Home Loans, the Court ruled compliance (Mach Mining v. EEOC), and that a plaintiff that a borrower seeking to rescind a loan satisfies the asserting a disparate treatment religious discrimination Truth in Lending Act’s three-year rescission provision by claim may prevail if she can show that her need for notifying the lender of his intent to rescind within three an accommodation was a motivating factor in the years, even if he does not file suit within that time. And employer’s decision (EEOC v. Abercrombie & Fitch). in two ERISA cases, the Court held that ERISA plans In an important decision under the Fair Housing Act, the must be interpreted according to ordinary principles Court held that disparate impact claims are cognizable of contract law, without applying any presumptions in under the Act (Texas Dep’t of Housing and Community favor of beneficiaries (M&G Polymers v. Tackett), and Affairs v. Inclusive Communities Project). that even where a claim based on a fiduciary s breach of And in prisoner civil rights cases, the Court held that the duty to exercise prudence in selecting investments is a prison regulation preventing a Muslim inmate from untimely, a beneficiary may have a timely claim based growing a beard violated the Religious Land Use and on the fiduciary s separate duty to monitor and remove Institutionalized Persons Act (Holt v. Hobbs); that a prior imprudent trust investments (Tibble v. Edison Int’l). dismissal counts as a “strike” under the Prison Litigation As it has been in recent years, the Court was Reform Act’s three strikes provision, even where that particularly active in bankruptcy cases during this dismissal is the subject of a pending appeal (Coleman Term. In Harris v. Viegelahn, the Court ruled that a v. Tollefson); and that a pretrial detainee alleging that he debtor who converts a Chapter 13 case to a Chapter 7 was subjected to excessive force need only show that case is entitled to return of any post-petition wages in the force used against him was objectively unreasonable, the possession of the Chapter 13 Trustee that have not and need not meet the more difficult Eighth Amendment yet been distributed to creditors. In Bank of America standard (Kingsley v. Hendrickson). v. Caulkett, the Court held that a Chapter 7 debtor may

4 not void a junior mortgage under § 506(d) even where tangible object,” tangible objects are limited to objects the debt remaining on the senior mortgage exceeds used to record or preserve information. In McFadden the value of the collateral. In procedural bankruptcy v. United States, the Court held that when a defendant is matters, the Court held that a bankruptcy court’s order charged with distributing an analogue substance under denying confirmation of a debtor’s proposed repayment the Controlled Substances Act, the government must plan is not a final order subject to immediate appeal show that the defendant knew he was distributing a (Bullard v. Blue Hills Bank); that bankruptcy judges substance regulated under the Act. In Elonis v. United may adjudicate non-core proceedings where the parties States, the Court held that a defendant can be convicted knowingly and voluntarily consent to the bankruptcy of transmitting a threat in interstate commerce under court’s jurisdiction (Wellness International Network v. 18 U.S.C. § 875 only where the defendant had the Sharif); and that professionals entitled to recover fees purpose to communicate a threat or knowledge that from the bankruptcy estate are not entitled to additional the communication would be viewed as a threat. And fees incurred in defending the fee application (Baker in Henderson v. United States, the Court ruled that 18 Botts v. ASARCO). U.S.C. § 922(g) does not bar a court-ordered transfer of The Court was also once again active in intellectual a convicted defendant’s firearms to a person designated property cases. In patent cases, the Court decided that a by the defendant. defendant’s belief that a patent is invalid is not a defense The Court also decided several Fourth Amendment to an induced infringement claim (Commil USA v. cases during this Term. In Heien v. North Carolina, the Cisco Systems); that contracts providing for payment of Court held that a search may be reasonable under the royalties after expiration of the patent are per se unlawful Fourth Amendment even when based on an office ’s (Kimble v. Marvel Entertainment); and that the Federal mistake of law. In Rodriguez v. United States, the Court Circuit must review a district court’s resolution of held that police may not extend a traffic stop in order factual matters subsidiary to a claim construction under to conduct a dog sniff of the vehicle unless they have a clear error, not a de novo, standard of review (Teva reasonable suspicion to justify the prolonged seizure. Pharmaceuticals v. Sandoz). And, in trademark cases, And, in City of v. Patel, the Court held the Court held that the question of whether trademarks that facial challenges may be brought under the Fourth may be “tacked” for purposes of determining priority Amendment, and that a city ordinance requiring hotel is a factual question for the jury (Hana Financial v. operators to allow inspection of registries upon demand Hana Bank); and that issue preclusion applies to matters is facially unconstitutional. The Court also continued adjudicated by the Trademark Trial and Appeal Board to expound on its Crawford line of cases interpreting (B&B Hardware v. Hargis Industries). the Confrontation Clause, holding in Ohio v. Clark In other business-related cases, the Court held that: a that a child’s statements of abuse made to his teachers statement of opinion in a registration statement does not did not constitute testimonial hearsay barred by the constitute an actionable “untrue statement of fact” under Confrontation Clause. the Securities Act of 1933 merely because the opinion In an important sentencing case, Justice Scalia final y later turns out to be wrong (Omnicare v. Laborers Dist. succeeded in his nearly decade-long quest to garner a Council Construction Industry Pension Fund); and that majority holding that the Armed Career Criminal Act’s a state board controlled by active market participants residual clause is unconstitutionally vague (Johnson v. may not invoke state-action immunity from the antitrust United States). And in Glossip v. Gross, the Court held laws unless the board is subject to active supervision by that Oklahoma death-row inmates had failed to show the state (North Carolina State Bd. Of Dental Examiners a likelihood of success on their claim that Oklahoma’s v. FTC). lethal injection protocol created an unconstitutional risk Although the Court’s criminal docket was significantly that they would suffer severe pain. less than its civil docket, the Court issued a number of Finally, in two habeas corpus cases, the Court held important criminal law decisions. In Whitfield v. United that a state court unreasonably determined the facts in States, the Court held that enhanced penalties under denying the petitioner a hearing to determine whether he the bank robbery statute are appropriate when a robber was intellectually disabled, preventing imposition of the forces someone to accompany him over any non-de death penalty (Brumfield v. Cain); and that where a state minimis distance; movement over a substantial distance court has found a constitutional claim to be harmless, the is not required. In Yates v. United States, the Court held petitioner must show that the state court’s adjudication of that under 18 U.S.C. § 1519, which makes it a crime to the harmless error question was unreasonable to obtain knowingly alter or destroy “any record, document, or relief (Davis v. Ayala). 5 Judge O’Meara Judge Denise Page Hood recalled fondly how Portrait Presentation Judge O’Meara would pass through her chambers every morning with a bag of fresh bagels to share with her and Judge John Corbett O’Meara was honored with the her staff. Appointed to the bench at the same time as presentation of his official portrait at a special session Judge O’Meara (along with Judge Paul D. Borman), she of the Court on May 4. Family, friends, and colleagues described him as part of her “crew.” She noted that “John gathered from around the country to join in the has been described in many places as a gentleman’s celebration. Judge O’Meara’s judge, courteous and fair, immediate family members attentive.” in attendance were his wife Judge Paul D. Borman Julia Donovan Darlow; his described how Judge children Meghan O’Meara; O’Meara grew up in Hillsdale, (Ray Burks), Sean O’Meara Michigan: “He and his folks (Ann Mullen), Patrick were the only Democrats in O’Meara, Gillian Darlow, and Hillsdale and proud of it.” Tighe O’Meara (Sebastian Judge Borman recounted Graham); and grandchildren Judge O’Meara’s attempt to Grace, Corbett, and Patrick join the Notre Dame football O’Meara, along with their team as a walk-on, revealing mother Catherine O’Meara; that the judge was offered a and Jude and Lola O’Meara. Judge John Corbett O’Meara with his wife, Julia position better suited to his Gillian’s husband Chris Jones Donovan Darlow, at his portrait presentation. abilities – with the glee club. He outlined how Judge O’Meara and their sons Peter and Evan Photo by Harold White. were unable to attend. served as a navy submariner Also in attendance were after college at Notre Dame, more than two dozen federal judges, several former attended Harvard Law School, and then worked for law clerks and interns, extended family, friends, and Michigan Senator Phil Hart in Washington, D.C. Judge members of the legal community. The event was expertly Borman described Judge O’Meara’s work in Democratic organized and carried politics, their long friendship, and how they both out by the Judge’s came to the bench executive assistant, “as the first wave Jane E. Freeman. of Clintonistas.” After opening Judge Borman remarks by Chief ended by thanking Judge Gerald E. Judge O’Meara “for Rosen, tenor Carlos giving me 50 years Enrique Santelli sang of friendship and a delightful rendition wisdom.” of “America the Judge O’Meara’s Beautiful.” Before longtime career Judge O’Meara’s law clerks, Marie painting was unveiled, Coombs and five speakers took Michelle Lund, the opportunity to injected irreverence color a portrait of Judge O’Meara with current and some former law clerks, left to into the proceedings his character. What right: Brandon Hofmeister, Paul Brown, Michelle Lund, with their take on emerged was a Marie Coombs, and Kevin Plumstead President Obama’s “Anger Translator” picture of a man who Photo by Harold White. is admired for his – the “Angry Law judicial acumen, dedication to public service, courteous Clerk Translator.” demeanor, kindness, and generosity. The audience enjoyed the Angry Law Clerk Translator’s comic antidote to Judge O’Meara’s generally calm, 6 reasonable, and courteous demeanor. However, both Using eVoucher, attorneys and expert service clerks also expressed deep gratitude for the opportunity providers can create and submit their vouchers online to work with the Judge. Lund quoted Thomas Edison: “I with reduced preparation time and better accuracy. never worked a day in my life; it was all fun.” Borrowing The system will provide the Court with a full range a Jim Harbaugh family theme, Coombs asked Lund: of functionality in managing CJA Panels and the “Who has it better than we do?” Lund responded: appointment of attorneys. Originally developed by the “Noooobody.” District of Nevada, the Administrative Office of the U.S. Judge O’Meara’s son Tighe, Chief of Police of Courts has adopted eVoucher as a model system for the Ashland, Oregon, then gave a warm tribute to his father’s entire Federal judiciary. commitment to public service. Tighe spoke of how eVoucher will eventually be integrated into CM/ Judge O’Meara personified doing something “greater ECF NextGen (next generation) which is currently in than yourself,” which inspired him in his career as a development. Implementation of CM/ECF NextGen police office . Tighe also joked that Judge O’Meara will be a major upgrade from the current version of CM/ was “built to be a federal judge.” When as a teenager ECF and will include a single sign-on feature allowing Tighe announced that he planned to copy a VHS tape attorneys to move seamlessly between CM/ECF systems from the video store for his own use, the future judge in different districts. We will be providing a great deal declared, “That is a federal crime, and you will not do it of information and training related to CM/ECF NextGen in my house.” Tighe closed by encouraging the Judge’s later this year. grandchildren to follow in his footsteps: “participate to Have an enjoyable summer! the betterment of the community, give yourself to the Remember, if you have any comments, questions team, give yourself to the class, give yourself to whatever or suggestions, do not hesitate to contact me at: david_ organization you’re a part of, as your grandfather, my [email protected]. father, has.” Judge O’Meara spoke to thank his staff and family and to recognize the accomplishments of each of his Investiture of Magistrate Judge children, especially those of his late son, Corbett Edge Anthony P. Patti O’Meara. The judge’s wife, Julia, and their grandchildren then assisted in unveiling the portrait, which was painted On Friday, April 24, 2015, surrounded by six of his by Gary D. Hoffman. Chief Judge Rosen accepted the seven children, his wife, Helen, and his extended family portrait on behalf of the Court and provided some closing and friends, Magistrate Judge Anthony P. Patti celebrated remarks. The Chief Judge said, “beyond the fact that his investiture in the Levin Courthouse in Detroit. [Judge O’Meara is] a warm, caring, elegant, fair-minded The occasion and the speeches given were a gentleman of a person, the one word that keeps coming reflection of Magistrate Judge Patti’s commitment to the to me is gracious, graciousness of a human heart.” law, his tenacity, and his dedication to all that he takes The ceremony concluded with “Simple Gifts,” sung on; be it his service to the public or his commitment to movingly by Santelli. his family and friends. The Invocation was offered by Rev. Fr. Charles Irvin, a lawyer himself by training, followed by the pledge of Dave Weaver allegiance, led by Magistrate Judge Patti’s second oldest Court son, Marcello. Administrator / Chief Judge Gerald E. Rosen introduced Magistrate Clerk of Court Judge Patti and administered the oath, honoring Judge Patti’s special request to repeat the oath as administered, The Eastern District word for word. In taking the oath, Judge Patti used the has begun implementation middle names given to him at both his Baptism and of eVoucher, an electronic Confirmation, in honor of his two grandfathers. processing system for Criminal The robes were presented by Judge Patti’s daughters, Justice Act (CJA) vouchers. We Francesca Patti and Lucia Patti, followed by the are, along with the rest of the 6th Circuit, expected to go presentation of the gavel by Gianpaolo M. Patti. live in the Eastern District by mid-November 2015. (continued on page 8) 7 Magistrate Judge Patti (from page 7) Following Jackson, Judge Patti’s friend and fellow lawyer, John Blase, who he met 28 years ago at the Upon joining his fellow judges on the bench, Judge University of Notre Dame Law School, made remarks. Patti was privileged to be honored by Chief Judge Rosen, Blase brought down the house with his dry humor, but who spoke a few words of the new judge. also spoke about how Judge Patti’s appointment will be Chief Judge Rosen, who a blessing to the community. “It is has known Anthony as both rather miraculous and comforting a practicing lawyer and as a that our most important and candidate for the position of influential positions are still filled magistrate judge, said that Judge with people like this,” Blase said. Patti’s best character traits are his Next, Judge Patti’s eldest “persistence and tenacity.” daughter, Gabriella Patti, spoke on Remarks were made by friends, behalf of the Patti family, offering a colleagues, and family, who spoke personal perspective on how Judge of Judge Patti’s accessibility from Patti’s family life influences him as courtroom to home life. a judge. “My dad puts family first, The first remarks were a trait that may not seem important made by Thomas H. Howlett, to the workplace, but I believe that president of the Oakland County Chief Judge Gerald E. Rosen and it is crucial. I know that like my Bar Association. Howlett said Magistrate Judge Anthony P. Patti dad makes our family stronger and that he was one of Judge Patti’s at his April 24, 2015 Investiture more united, we give him strength opposing counsel in a court case Photo by John Meiu, courtesy of Detroit Legal News Publishing as well.” in 2002. The two remained civil Remarks were also made by Bruce T. Wallace, Judge and professional during the proceedings and after the Patti’s mentor and colleague. Wallace said that he will case remained friends. miss his presence at the firm. Howlett said that he has come to appreciate how In his response, Hon. Anthony P. Patti thanked deeply Judge Patti cares his family and his parents, about the law, the people, Beatrice M. Patti and and the ethics of the legal Anthony V. Patti, and profession. He likened Judge honored several people in Patti to a “renaissance man,” the audience, most notably emphasizing that he can just retired Magistrate Judge as easily converse about the Paul J. Komives. law as he can about history, Judge Patti spoke travel, and sports. about the kind of judge he He said he believes that would like to be. “I want Judge Patti’s courtroom will to recognize the dignity of be a reflection of their time each person, and you do together as lawyers: “I have that, and you’re a person no doubt that Judge Patti’s of love, by listening, by court will be one where, encountering the drama that even in hotly contested humans go through without cases, professionals will fear or coldness. I want to litigate in an atmosphere that Magistrate Judge Anthony P. Patti and members be just, but I want to be just promotes equal justice and of his family at his Investiture without guile, and I want to mutual respect.” be a person of goodwill.” Photo by John Meiu, courtesy of Detroit Legal News Publishing LLC. The next remarks were The ceremony was made by Angela L. Jackson, ended with a benediction, done by Deacon Daniel R. Judge Patti’s long time colleague and friend at Hooper Foley, J.D., from the Diocese of Lansing. After the Hathaway, P.C. Jackson expressed admiration for Judge dismissal of the court, guests celebrated the investiture Patti’s ability to be dedicated to his work and maintain of Judge Patti with a reception. his relationships and family life. 8 LOCAL

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9 David L. Lemisch concluded his remarks by thanking everyone in the Receives Gilman Award room for their contributions to the justice system in the United States. On April 21, the Chapter honored Daniel L. Lemisch Judge Patrick J. Duggan introduced the keynote by presenting him the Leonard R. Gilman Award. speaker, his son, Detroit Mayor Michael (Mike) Duggan. Lemisch is the Chief of the Criminal Division of the U.S. Mayor Duggan spoke with his usual fervor about the Attorney’s Office for the Eastern District. He previously challenges facing the City. He discussed his connection served as the Deputy Chief of the Controlled Substance to the City, the impact of the bankruptcy, and the fresh Unit, where he prosecuted cases involving narcotics start it has provided. He talked about how he and his conspiracies, money laundering, and homicide. During team have sought to aggressively address and solve his career as a federal prosecutor, Lemisch also handled problems in the City, including street lighting, abandoned cases involving public corruption, health care fraud and homes, and economic development, and he demonstrated violent crimes. He has also an energy and a passion for lectured on trial advocacy, re-making Detroit. public corruption, and criminal To watch the video of the procedure code reform in Gilman Luncheon, including Russia, Nigeria, Indonesia, the both Lemisch and Mayor Czech Republic, Montenegro, Duggan’s comments, visit Serbia, Bangladesh, https://fbamich.org/videos/ Philippines, Ukraine, Thailand and contact Brian Figot at and Pakistan. [email protected] for Prior to joining the password information. Department of Justice, Lemisch was a trial lawyer and Chief of Appeals at the Veterans Oakland County Prosecutor’s Treatment Office in Pontiac, Michigan. Courts Event While at Oakland County, he prosecuted numerous felony United States Attorney Barbara McQuade, The Chapter Federal jury trials and argued cases Daniel Lemisch, Mayor Mike Duggan, Disability Benefits Committee before the appellate courts. Judge Patrick J. Duggan, and Thomas Schehr presented a seminar on Lemisch also practiced at the Gilman Luncheon Veterans Treatment Courts civil law in , Photo by John Meiu, courtesy of Detroit Legal News Publishing LLC. (VTC) on April 21 at the Levin Pennsylvania, where he Courthouse. The seminar specialized in commercial litigation. He graduated provided an overview on the further development and from Temple University in Philadelphia and studied law maturation of VTCs. Retired Judge David Jordan at the University of Detroit School of Law. provided an overview of the latest initiatives on the local U.S. Attorney Barbara M. McQuade warmly and national level regarding VTCs. Judge Carrie L. Fuca, introduced her friend and colleague and presented 41B District Court, and Judge Jodi Debbrecht Switalski, him with the Award. Lemisch began his comments by 51st District Court, provided their philosophies and expressing gratitude for the Award, and thanking and perspectives on their respective courts. Nannette Colling, acknowledging his friends in the defense bar, those Veterans Justice Outreach Coordinator, Department of in the law enforcement community, his colleagues in Veterans Affairs, provided an update regarding the VA’s the U.S. Attorney’s Office, and the keynote speaker evolving role with the VTCs. Lynn Hedges, Quality of Mayor Duggan for their important and tireless work. Life Analyst from the Michigan Veterans Affairs Agency, Lemisch then spoke about the importance of an provided an overview of the organizational structure and independent judiciary to our system of government the services provided to veterans at the State level. and the administration of justice. Lemisch recounted Particularly noteworthy were the variety of stories from overseas where citizens cannot rely on an organizations that were represented by the attendees. independent justice system, and how justice directly The interest level bodes well for the future of VTCs in contributes to the health and stability of a country. He Michigan. 10 Diggin’ Our Diversity Event necessary to participate and everyone is welcome, including family members and friends. On June 6, the Chapter Diversity Committee, supervised by The Greening of Detroit and the Law Day: The USDA/USFS Great Lakes Magna Carta Restoration Initiative, held its fourth annual Diggin’ On May 1, the Our Diversity event. Court, the Chapter, Volunteers planted trees and the Wolverine Bar along Detroit streets in Association co-hosted an the area of Sunderland open house at the Levin and Stahelin from 7 Mile Courthouse to celebrate to Outer Drive. The event Law Day. This year’s was co-sponsored by the theme celebrated the Albanian Bar Association, 800th Anniversary of Armenian-American Bar the Magna Carta-Symbol Association, Association of Freedom Under Law. of Corporate Counsel The Magna Carta, which - Michigan Chapter, was sealed in 1215, has Chaldean-American Bar become an international Association, D. Augustus Lending a hand at the Diggin’ Our Diversity event were symbol of the rule of Straker Bar Association, Andrew Priebe, Kelly Priebe, David Palizzi, law and an inspiration Detroit Metropolitan Bar Elisa Angeli Palizzi, event co-chair Marcy Rosen, for many basic rights Association, Incorporated Chad Techner, Clayton Thompson, and Chantez Knowles. Americans hold today, Society of Irish-American including due process, Photo by John Meiu, courtesy of Detroit Legal News Publishing LLC. Lawyers, Jewish Bar habeas corpus, trial by Association of Michigan, jury, and the right to travel. Michigan Asian Magistrate Judge David Pacific American Bar R. Grand, Assistant U.S. Association, Michigan Attorney Susan Gillooly, Employment Lawyers Amy Johnston, Megan Association, South McGown, and John Sier Asian Bar Association co-chaired the event. of Michigan, Stonewall Over 350 individuals Bar Association, attended the event, Wolverine Bar including three high Association and Women school classes, and guests Lawyers Association of enjoyed the hot dog, chips Michigan. and cookies lunch that Marcy Rosen, a co- has become a Law Day chair of the Diversity tradition in the Eastern Committee and chair of District. One of the high the event, reported that school classes provided the volunteers had perfect art work and posters Law Day committee members Amy Johnston, Susan Gillooly, weather this year and the depicting the progression Magistrate Judge David Grand, Megan McGown, neighborhood residents of the Magna Carta into and John Sier. were very appreciative current law. Television of the volunteers’ efforts. Photo by John Meiu, courtesy of Detroit Legal News Publishing LLC. screens were placed in The Diversity Committee the hallway for viewers to plans to continue the event next year, likely at the end of watch clips of movies relating to the Magna Carta. May or beginning of June 2016. There is no experience (continued on page 12) 11 Law Day (from page 11) Alexander Simpson, Katheryne Zelenock, Jeffrey Ammons, Carmen Dorris, Ryan Bohannon, Jerome For the first time, the Eastern District’s officia Crawford, Dawn R. Copley, Lindsay DeMoss, Andrea court reporters participated in Law Day. They enjoyed Johnson, Jeffrey S. Kopp, Bradley M. Krul, Thomas R. representing their profession and showcasing it to the Warnicke, L. Pahl Zinn, Trina Mengesha, Randall Tatem, legal community, the public, and students. The court Aaron Burrell, and Sarah Firnschild. The Chapter and reporters demonstrated their deft real-time transcription the Court would also like to thank the following student capabilities and gave a PowerPoint presentation and volunteers from Cooley Law School: Kelsey Carpenter, brochure of tips for attorneys to ensure the best record Torrey Johnson, Brendette Walker, Monique Merritt, is made of their proceedings. Jeffrey Perlman, Reda Taleb, Nehemiah Williams, and As in past years, numerous groups and federal Meikal Summey. The “Ask a Lawyer” program would agencies participated not have been possible in Law Day, including: without the time and Bureau of Alcohol, effort these volunteers Tobacco, Firearms contributed. and Explosives; The Chapter and the Coast Guard; Court thank everyone Consumer Bankruptcy who helped make Law Association; Court Day 2015 a tremendous Historical Society; success. U.S. Customs & Border Protection; Drug Enforcement Book Club Administration; Federal Bureau of Investigation; Takes Federal Defender “Blindfolds Office; Immigration and Off” Customs Enforcement; Book Club attendees Ryan Hampstead, Susan Gillooly, Internal Revenue Federal judges and David Fink, Andrew Doctoroff, Ken Gold, Judge Avern Cohn, Service; National Labor lawyers met on May 26 Geneva Halliday, Erica Fitzgerald, Judge Marianne Battani, Relations Board; Ralph for a robust discussion Magistrate Judge Elizabeth A. Stafford, Tim Devine, and M. Freeman Memorial of Blindfolds Off: Judges Magistrate Judge Anthony P. Patti. Library; Secret Service; on How They Decide, by U.S. Attorney’s Office; Photo by John Meiu, courtesy of Detroit Legal News Publishing LLC. Joel Cohen. The book U.S. Bankruptcy Court; comprises interviews U.S. District Court; U.S. Marshals Service; U.S. Pretrial of 13 judges on significant cases they decided—from Services Agency; U.S. Probation Department; and the Judge Denny Chin of New York on sentencing Bernie Wayne County Sheriff’s Department. The organizations Madoff to 150 years in prison to Judge Charles Kocoras had information booths where guests could meet their of Illinois on excluding expert testimony in a $45 billion representatives and learn about their respective roles in class action. The judges’ answers go behind their rulings the administration of justice. to reveal the influences and experiences—whether inside As part of the Law Day Activities, and in the spirit of or outside the courtroom—that led to the decisions. continuing assistance to the public, the “Ask a Lawyer” Moderated by Andy Doctoroff, the Book Club pro bono program was offered for those in need of discussed the effect of judges’ personal experiences on legal assistance. This successful program attracted their decisions, the impact of judicial decisions being many citizens who had legal issues and gave them an made in isolation instead of in consultation with other opportunity to discuss those issues with the volunteer judges, and whether judges’ consideration of factors attorneys. The Chapter and the Court recognize and outside the courtroom is fair to litigants. Both the book thank the following volunteer attorneys: Sherry D. O. and the discussion offered unprecedented and fascinating Taylor, Tamira T. Chapman, Kendall Lott-Tucker, Paula insights into the complex decision making behind every Johnson, Patrice S. Arend, Joseph Golden, Timothy judicial opinion. H. Howlett, James J. Parks, Marlo Johnson Roebuck, Stay tuned for the Book Club’s next selection coming this fall. 12 Bench/Bar Superfund Cleanup Allocation Golf and Tennis Outing and Apportionment Webinar

On June 8, Eastern Do you have clients who District judges joined over have received a request for 50 lawyers for an afternoon information or, worse yet, a of golf, tennis, drinks and general or special notice letter dinner at the 2015 Bench/ from the U.S. Environmental Bar Social. This year, the Protection Agency (EPA) Chapter held the outing at the inviting them to participate Detroit Golf Club. Each of the with others in the cleanup of foursomes was paired with a an environmentally impacted judge to compete in a 5- site? Have you been asked to person scramble tournament. estimate their legal share of There was a tie for first place costs, only to see your clients between the Butzel Long turn pale at the prospect of team (David DuMouchel, joint and several liability for Damien DuMouchel, George site cleanup and restoration? Donnini, and Justin Klimko) Have you wondered how you and the Miller Canfield team can help your clients reduce (Tom Cranmer, Clarence Tom Cranmer, Chief Judge Gerald E. Rosen, Rocky their potential liability to a Pozza, Rob Morad, and Marc Pozza, Rob Morad and Marc Swanson. manageable level? Swanson). In the tennis On May 27, the Chapter tournament, Jason Thompson Photo by John Meiu, courtesy of Detroit Legal News Publishing LLC. E n v i r o n m e n t a l L a w earned the first place title and Practice Committee Although the forecast called for rain, the sun partnered with the Litigation Committee of the managed to make an State Bar’s Environmental appearance for most of Law Section to present the day. The tournament a webinar on Superfund was followed by a cocktail cleanup allocation and hour and seated dinner, apportionment to discuss where many fabulous prizes some of the options for were raffled off, including making Superfund liability gifts certificates to local at a multiparty site restaurants, Tigers tickets, manageable. and a Big Bertha driver. Sorting out how much The event provided a unique each potentially liable and relaxed opportunity for party (PRP) at a multiparty interaction between the Superfund site should pay Eastern District bench and toward remediation and bar. The Chapter would restoration costs is a special like to thank its sponsors – field of expertise practiced Stout Risius Ross, Conway by the webinar’s featured MacKenzie, Honigman, Golf Outing speaker, John Tatum of John Computing Source, Brooks Matt Lund, Bankruptcy Judge Mark A. Randon, Tatum, P.C. in Bloomfield Kushman, Miller Canfield, Magistrate Judge David R. Grand, District Judge Hills. John combines his Bush Seyferth Paige, Pepper Robert H. Cleland, Chief Judge Gerald E. Rosen, Judge technical and legal training Hamilton, and Barris Sott David M. Lawson, Judge Victoria A. Roberts, Judge with years of practice in the Denn & Driker – for their George Caram Steeh, and Tiffani Sadek. environment law arena to generosity in making this assist PRP groups in finding Photo by John Meiu, courtesy of Detroit Legal News Publishing LLC. event possible. (continued on page 14) 13 Superfund (from page 13) liability. Allocation, on the other hand, is an equitable determination of how much each party should pay among jointly and severally liable PRPs. One court recently a formula for the allocation of cleanup costs that is described apportionment as separate checks at a restaurant defensible and maximizes the level of participation and and allocation as one check divided equitably among the funding for the cleanup. As discussed in more detail diners who can pay. Courts have rarely found that an below, John’s presentation focused on reasons why a adequate basis has been established for apportionment party should participate in a PRP group at a multiparty in Superfund cases. However, in 2009 the U.S. Supreme site and the factors that an allocation consultant may Court upheld a district court’s apportionment of cleanup consider in developing an allocation formula for the costs on the bases of geography, time and volume in group. Burlington Northern & Santa Fe Railway Company v. As a lead-in to John’s presentation, Sharon United States, 556 U.S. 599 (2009). Sharon’s presentation Newlon of Dickinson Wright, who chairs the Chapter focused on appropriation cases decided since Burlington Environmental Law and Practice Committee, provided Northern but also touched on the factors generally used an update of recent Superfund apportionment and by courts in allocating Superfund liability. Sharon noted allocation cases. As Sharon explained, apportionment that while courts appear to be more willing to consider is a legal defense to the general applicability of joint appropriation, they still struggle with the information and several liability in Superfund cases. If a PRP can required to demonstrate divisible harm. demonstrate a distinct harm or a reasonable basis for John Tatum began his presentation affirming determining the PRP’s contribution to a single, divisible the need for reasoned allocation at most multiparty harm, the PRP may be able to avoid joint and several

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14 Superfund sites, as divisibility is generally difficult and comparison of volumes of waste disposed at a Superfund time consuming to establish. John noted that parties site by each PRP, allocations may also consider the who fail to participate in PRP groups to address their nature of a PRP’s relationship to a site, the nature, collective remediation liabilities may face a myriad of extent and divisibility of site impacts, and the nature internal, external and social costs. The internal costs and divisibility of the components of the remedy. John may be dominated by financial disclosures and internal identified various sources of historic information that litigation costs. External costs include attorney and an allocation consultant may consider: site records, technical expert fees, the risks of government and private witness and neighbor interviews, government records, party enforcement, and cost recovery. John explained PRP records and even newspaper articles. Development that on a social level, nonparticipating parties can earn of the allocation is generally a dynamic mediation/ a bad reputation with government agencies, and can be facilitation process, involving interaction between the targeted by the press, environmental groups and toxic allocator and the PRPs, subgroups pursuing common tort plaintiffs. Participation can lessen these risks, interests and the overhanging threat of the costs of while providing some control over the development dropping out. Ultimately, John noted, if you have a of information, the selection of the remedy and the resolution where nobody is happy, but nobody is angry, allocation of costs. you can count that as a success. John presented an overview of several factors that Copies of John’s and Sharon’s Power Point may be used to develop an allocation for remediation presentations are available through the State Bar costs associated with a multiparty Superfund site. Environmental Law Section website. Although many private party allocations begin with a

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