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Welcome to the LSIS Investigative Journal

Tuesday, February 8, 2022

Scammers Are Using Fake Job Ads to Steal People’s Identities

 ProPublica - Technology
Scammers Are Using Fake Job Ads to Steal People’s Identities
From Facebook to LinkedIn to Indeed, ads are popping up that promise well-paying jobs — if applicants provide their Social Security numbers and other details up front. Scammers then use the information to apply for unemployment benefits.
by Cezary Podkul
Oct. 26, 2021, 5 a.m. EDT

ProPublica is a nonprofit newsroom that investigates abuses of power.

It has become a ubiquitous internet ad, with versions popping up everywhere from Facebook and LinkedIn to smaller sites like Jobvertise: Airport shuttle driver wanted, it says, offering a job that involves picking up passengers for 35 hours a week at an appealing weekly pay rate that works out to more than $100,000 a year.

But airports aren't really dangling six-figure salaries for shuttle drivers amid some sudden resurgence in air travel. Instead, the ads are cybercriminals’ latest attempt to steal people’s identities and use them to commit fraud, according to recent warnings from the FBI, the Federal Trade Commission and cybersecurity firms that monitor such threats. The U.S. Secret Service, which investigates financial crimes, also confirmed that it has seen a “marked increase” in sham job ads seeking to steal people’s personal data, often with the aim of filing bogus unemployment insurance claims.
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“These fraudsters, they’re like a virus. They continue to mutate,” said Haywood Talcove, chief executive of the government division of LexisNexis Risk Solutions, one of several contractors helping state and federal agencies combat identity theft. (ProPublica subscribes to public records databases provided by LexisNexis.)

This particular mutation is an emerging threat, Talcove and others said. The numbers are small so far, but they’re rapidly increasing. In March, LexisNexis detected around 2,900 ads touting unusually generous pay, using suspicious email domains and requiring that one verify one’s identity upfront. The total had grown to 18,400 by July, and then to 36,350 as of this month. Talcove said these figures are based on a small sample of job ads and that the real number is likely much higher.

This form of scam is surging at a moment when targets for job application fraud abound. Millions of Americans are quitting jobs and looking for new ones. An all-time high percentage of workers — 2.9% — quit their jobs in August, according to the U.S. Department of Labor. Meanwhile, huge numbers of laid-off workers are still looking for work, making for a historic churn in the labor market.
How to Avoid Being Scammed by Fake Job Ads

The ads reflect a tactical adjustment by cybercriminals. A massive wave of unemployment insurance fraud during the pandemic prompted authorities to heighten identity verification requirements. In most U.S. states, cybercriminals can no longer simply input stolen identity information into government websites and frequently collect unemployment insurance aid. Now, applicants whose names are used to apply for unemployment benefits often need to verify on their phones that they’re the ones seeking assistance, a process similar to two-factor authentication.

That means scammers may need help from their victims — and sometimes they go to elaborate lengths to mislead them. Some fraudsters recreate companies’ hiring websites. One fake job application site uses Spirit Airlines’ photos, text, font and color code. The phony site asks applicants to upload a copy of both sides of their driver’s license at the outset of the process and sends them an email seeking more information from a web address that resembles Spirit’s, with an extra “i” (spiiritairline.com). Spirit Airlines did not respond to requests seeking comment.

Other job scams are less elaborate and have more visible signs of inauthenticity. One fake ad for airport shuttle drivers on Facebook was posted by a woman who purported to be working at Denver International Airport. Diligent readers may have noticed that the only location linked from the woman’s Facebook profile was a Nigerian city called Owerri. (A spokesperson for the Denver airport reported the profile to Facebook after an inquiry by ProPublica, and the ad is no longer active.)

In other instances, unsolicited job offers simply land in applicants’ inboxes after they’ve uploaded their résumés to real job search sites, which scammers can access if they pose as potential employers. Jeri-Sue Barron has received a slew of emails since the start of the pandemic informing her that she was preapproved for a variety of jobs she hadn’t even applied for. Barron, a retiree in suburban Dallas, had uploaded her résumé to several job hunting sites in hope of finding some part-time work to supplement her Social Security income. She then received multiple job offers with nary a request for an interview. One email originated from a school in India’s Kerala state; another came from a Croatian website she’d never heard of. “They started coming in from places that were weird,” said Barron. “You almost don’t want to find out the next stage.” She ignored the offers.

As with fake unemployment claims more broadly, the fraud is being facilitated by an underground infrastructure, including online forums where cybercriminals share advice on how to perfect their techniques. A person using the handle “cleverinformation” on a U.K. forum called Carder put together a how-to video that recommends posting fake job ads using a generic job application that can be modified to collect personal data. In September, someone going by “mrdudemanguy” on another forum, known as Dread, offered this advice to a person seeking stolen identities: “Pretend to be a local business and post some job ads. When they send in their résumé, call them and ask some basic job application questions. Make them think they’ve got the job as long as they can do a background check. For the background check request they send you photos or scans of ID documents.”

In response to a query from ProPublica, mrdudemanguy did not answer questions about sharing fake ads and instead focused on explaining the source of his recommended technique and its success. “I have not tried this method myself,” he wrote. “It’s just a method that I know other people do and it does work. It can be done in any part of the world, the country does not matter. As long as the job ad looks legitimate, a person looking for a job will be likely to apply.” Questions sent to cleverinformation yielded a similar response. “It’s effective,” the person said, noting that it’s an underused technique. The person added: “Trying to start a group chat where we share our knowledge.”

The ubiquitous ad for airport shuttle drivers was discussed in a similar forum. One version of it was posted in a Telegram channel of a Nigerian scam group called Yahoo Boys Community, along with instructions on what to tell applicants to get them to share their Social Security number, photographs of their driver’s license and other personal details. The post urged the group’s 5,000 members to ask applicants generic questions via email and offer them the gig — but only if they first shared their personal documents to land the plum job. “Once the client gives you the details, buzz me on WhatsApp and let start work on it Asap,” read the July message, whose initiator could not be identified.

Job application scams have been around in various forms for years. Some entice applicants to buy equipment or software from the scammers in preparation for a nonexistent job. Others try to trick victims into working for free or reshipping goods bought with stolen credit cards. But, according to law enforcement agencies, using fake job ads to steal identities and using them to cash in on government benefits is a new wrinkle.

Alexandra Mateus Vásquez fell for one such scam in December 2020. An aspiring painter, Vásquez was thinking of quitting her sales job at a suburban mall near New York City. She applied for a graphic designer position at the restaurant chain Steak ‘n Shake via the widely used job website Indeed. She was elated when what appeared to be a Steak ‘n Shake representative invited her via Gmail to participate in an email screening test for the job.

Conducting an interview via email initially struck Vásquez as odd, but she proceeded because the questions seemed standard. They included queries like “How do you meet tough deadlines?” according to emails she shared with ProPublica, and she provided earnest answers. Hours later she received an email offering her the job and asking for her address and phone number so a formal offer letter could be dispatched. The offered pay was attractive: $30 per hour. When the letter arrived, it sought her Social Security number, too. Vásquez provided all the requested information.

Soon Vásquez was invited for a background check, via online chat, with a supposed hiring manager. She found herself trading messages with an account that had a blurry photograph of an old man and the name “Iran Coleman” attached to it. (Several other applicants described similar experiences in a discussion about the Steak ‘n Shake job on the hiring site Glassdoor.)

The person claiming to be the Steak ‘n Shake’s hiring manager requested copies of Vásquez’s personal records to verify her identity. She shared photographs of her New York state ID and her green card but grew suspicious when the person asked for her credit card number, too. As Vásquez hesitated, she got a call from ID.me, an identity verification vendor used by 27 states to safeguard their unemployment insurance programs. The company asked if she was applying for jobless aid in California. That’s when she realized she was being scammed. “I was so disappointed,” Vásquez said. “I really believed that that position was real.”

Steak ‘n Shake did not respond to messages seeking comment. (ProPublica was able to reach Iran Coleman, the purported Steak ‘n Shake manager cited in the scam. He said the Louisville Steak ‘n Shake he used to manage is closed and he hasn’t worked there since at least 2014. He said he hadn’t updated his cursory LinkedIn profile, which lists him as a Steak ‘n Shake restaurant manager, in years. Coleman said he now manages three Waffle House restaurants. “I feel for that person,” he said of Vásquez when informed of her experience.)

Vásquez reported the incident to the police and contacted the Social Security Administration, which informed her that it had denied multiple requests to create an account in her name. (A spokesperson for the agency said privacy laws preclude it from discussing individual cases.) She then gave up on her job search. “I started doubting if all the jobs I’m applying for are real,” she said. Vásquez recently launched a website to begin selling paintings online and still hopes to become a design professional.

Blake Hall, chief executive of ID.me, said the company has rolled out language on its systems that informs users when their identities are being used to apply for unemployment insurance benefits and warns them not to proceed if they are being offered a job. Hall said it’s ultimately up to users to heed such warnings. “We will do as much as we can to make it clear that they’ve been scammed,” he said, “but ultimately protecting somebody from themself is a really tall order.” He compared his company to a goalkeeper who also needs help from other members of the team, in this case the job websites where criminals post fake ads.

The Better Business Bureau said in an alert last month that Indeed, LinkedIn and Facebook topped the list of online platforms where users reported spotting fraudulent job advertisements that duped them.

Indeed removes tens of millions of job listings that do not meet its quality guidelines each month, according to a company spokesperson, and it declines to list employers’ jobs if they do not pass those guidelines. In July, the site published a blog post detailing how to spot scam job ads. “Indeed puts job seekers at the heart of everything we do,” the spokesperson said.

LinkedIn removed 10 fake airport shuttle job postings after they were pointed out by ProPublica. A spokesperson said that posting bogus job ads is a “clear violation” of LinkedIn’s terms of service and said the company is investing in new ways of spotting them, such as hiring more human reviewers and expanding a work-email verification system for potential employers.

Facebook took down some of the airport shuttle posts after ProPublica alerted the service, but the company did not respond to questions about its processes for spotting and removing fake ads.

In recent months, the social media platform has also been plagued with fraudulent pages masquerading as state unemployment agencies. Some states complained to the U.S. Department of Labor that Facebook was slow to act on their requests to remove such pages, according to a March email from the department to state workforce agencies disclosed under a public records request. A Department of Labor official said that in March the agency set up a new process for states to report fake unemployment insurance websites to Facebook and that “to date, Facebook has been responsive in taking down fraudulent pages” reported by states.

New ones, however, keep popping up: A fake version of California’s Employment Development Department Facebook page was live as of Oct. 12. The agency confirmed the page was not its own, and it was removed from Facebook shortly after ProPublica’s inquiry.

Even if online platforms clean up their job postings, other identity theft scams are proliferating. On Oct. 15, the FBI issued an alert warning about fake websites that cybercriminals created to resemble the state unemployment websites of Illinois, Maryland, Nevada, New Mexico and Wisconsin. Criminals use the sites to steal victims’ sensitive personal information, according to the FBI.


Monday, December 20, 2021

Alabama judge who called colleagues ‘Uncle Tom’ removed from bench

Alabama judge who called colleagues ‘Uncle Tom’ removed from bench
New York Post
December 18, 2021
By Conor Skelding


An Alabama judge who called her fellow jurists “Uncle Tom” and “heifer,” and who allegedly put her finger on the scales in domestic cases has been yanked from the bench.

A nine-judge panel found that Nakita Blocton, of Jefferson County, Ala., had a history of “inappropriate comments” and, as regarded her staff, a “pattern of abuse,” according to Law & Crime.

That abuse included “excessive, unproductive, and unnecessary nights and weekends” she forced her underlings to work, according to the panel’s Dec. 10 judgment.
Nakita BloctonBlocton called her fellow jurists “Uncle Tom” and “heifer.”Twitter

And when her actions came under investigation by the state Judicial Inquiry Commission, the disgraced magistrate attempted a coverup, “order[ing] employees to allow her to see their private cellphones so that information that might be relevant to the Commission’s investigation could be deleted,” according to the judgment.

Blocton, who was a circuit judge in the Birmingham court’s domestic relations division, also used fake Facebook accounts “to communicate with litigants in a pending domestic-relations case in an effort to affect the outcome of the case,” according to the judgment.

She threatened one party in a divorce case and provided advice to another through the fake accounts, according to the complaint.

“False Prophet How Much Is Your White Judge Paying You,” she wrote to the disfavored party. “THE DEVIL IS WATCHING YOU.”

She used fake accounts to “friend” divorce lawyers and even leak information on other judges, according to the complaint.

Her attorney, Emory Anthony, told Above the Law: “We were trying to keep her on the bench, and we were disappointed they removed her from the bench.”


Monday, October 4, 2021

Cosby Held Liable (Again) for Ex-Lawyer's Press Statements


 Cosby Held Liable (Again) for Ex-Lawyer's Press Statements

By Joseph Fawbush, Esq.
August 02, 2019 10:07 AM

The California Court of Appeals recently held that Bill Cosby could be liable for public comments his ex-lawyer made on his behalf. This was the second time the California Court of Appeals took up defamation issues involving Cosby and Janice Dickinson, who accused Cosby of raping her in 1982.

The opinion came out a day after Bill Cosby and Janice Dickenson settled for what Dickinson’s attorney described as an “epic amount.”
Anti-SLAPP Motion Sought to End Defamation Suit

The case didn’t just settle for an epic amount, it also involved an epic amount of legal jostling.

Janice Dickinson filed a defamation lawsuit against Bill Cosby in 2015 for comments his attorney, Martin Singer, made shortly after an interview she gave to Entertainment Tonight where she alleged Cosby raped her.

Singer released statements on November 18, 19, 20 and 21 that stated both explicitly and implied in various terms that Dickinson was lying and making opportunistic claims.

That February, Dickinson’s attorney, Lisa Bloom, sent a letter requesting retraction of the comments made on November 18 and 19. Neither Singer nor Cosby retracted the statements. The original complaint alleged that since Cosby failed to retract his attorney’s statements, Cosby endorsed and ratified those statements.

Cosby then filed an anti-SLAPP motion, alleging that Dickinson could not win because her claims could not be discoverable under attorney-client privilege. Ultimately, the issue went to the California Court of Appeals, who held that her claims were not barred. The court remanded, and further legal action ensued, with Dickinson filing an amended complaint and Cosby again filing an anti-SLAPP motion. The California court of Appeals again weighed in, this time on the comments made on November 20 and 21. The issue was not just whether Cosby was vicariously liable, but also directly liable, for the comments his attorney made.
Attorney-Client Privilege Not Applicable – But Only for Cosby

The court determined that there was enough evidence to support Dickinson’s claim that Cosby is directly liable for his attorney’s claims. While Cosby argued that any relevant discovery would be protected under attorney-client privilege, the California Court of Appeals noted that Dickinson could potentially prove her case by showing that Singer routinely sought approval prior to sending out letters to the press on behalf of clients in his 40-year career.

Further, the court held that there was enough evidence that Cosby ratified the statements that he could be held vicariously liable for the statements. It was enough for the court to deny Cosby’s anti-SLAPP motion in its entirety.

Interestingly, Singer was also named as a defendant in the amended complaint. However, the trial court granted his anti-SLAPP motion, writing that the only way Singer could have known his statements were false were through conversations with Cosby; conversations that are protected under attorney-client privilege and not discoverable. Counsel for defendants can rest a bit easier.

Cosby is currently appealing his criminal conviction for a separate instance involving sexual assault.



Online dispute resolution promises to increase access to justice, but challenges remain

Online dispute resolution promises to increase access to justice, but challenges remain

By Lyle Moran
October 1, 2021, 4:10 am CDT

Los Angeles Superior Court Judge David Cowan has seen firsthand how contentious small claims cases can get.

Self-represented litigants unfamiliar with court procedures often become frustrated with the way hearings are conducted, he says, and take it out on their opposition by engaging in irrelevant personal attacks.

The heated nature of such proceedings is a major reason why Cowan says he harbored some doubts about a court initiative launched in late February requiring litigants in small claims cases to try to settle their disputes through an online platform before appearing for court hearings.

Court leaders say the online dispute resolution program, known as LA-ODR, is part of their ongoing efforts to enhance access to justice for self-represented litigants through the use of technology. A 2019 California Justice Gap Study found that 55% of Californians at all income levels experienced at least one civil legal problem in their household in the prior year, but nearly 70% of them received no legal assistance.

The urgent need to process cases remotely amid the COVID-19 pandemic also was an impetus for small claims ODR and for the LA court’s May 2020 announcement it was expanding the use of Tyler Technologies’ Modria ODR platform to help resolve child custody and visitation issues.

The court’s small claims program enables parties to use electronic devices such as smartphones to confidentially share documents and communicate at times convenient to them about the issues in play. The parties are also guided through a series of questions about their cases and can use free online mediation services to help them work through their differences. If litigants reach a settlement, the ODR system, developed by TurboCourt, generates the forms necessary to finalize the deal and electronically files the agreement with the court.

Cowan, who supervises the civil division of the nation’s largest trial court, says he’s been pleasantly surprised by the early results. Nearly 1,000 cases had been registered for ODR within the program’s first two weeks, and negotiations had started in roughly two-thirds of those cases, Cowan said at the ABA Section of Dispute Resolution’s virtual spring conference in April.

As of August, nearly 300 small claims cases had been resolved through the ODR platform without the need for any court appearances, according to subsequent figures provided by the court. While those numbers may seem like a drop in the bucket for a court that in the 2018-2019 fiscal year saw roughly 59,000 small claims cases filed, Cowan says every case that gets efficiently resolved through ODR is helpful, and he emphasizes that it often takes time for new systems to gain traction.

He also notes that ODR gives litigants the chance—for free—to work out agreements without their needing to make their way through Los Angeles’ notorious traffic to hearings, a perk that would likely be appealing even without a raging pandemic.

And beyond the consumer benefits, ODR enables the court to focus on cases that don’t get settled online and need judicial attention. “I think it definitely is an additional means of providing access to justice, and at the same time not closing any doors to justice, either,” Cowan says. “It seems like a win-win for everybody.”

The LA Superior Court is one of at least 89 courts across the nation that have turned to online dispute resolution in recent years with the dual goals of strengthening access to justice for litigants and more efficiently processing cases. The growing interest in ODR among courts has been fueled by the success of some early pioneers as well as the pandemic, which prompted many courthouses to close their doors for months and resulted in large case backlogs.

But courts’ forays into ODR have not come without hiccups. Some courts are struggling to get their initiatives off the ground because of technological challenges and opposition within the legal community. Additionally, there are ongoing consumer advocate concerns about whether the issues self-represented litigants face in the traditional courtroom setting can be effectively addressed by ODR platforms—and even ODR supporters acknowledge that there is always room for improvement.
ODR has e-commerce roots

While ODR has been used by e-commerce businesses such as eBay and PayPal to help buyers and sellers resolve their disputes for more than a decade, it has taken far longer to gain a foothold in U.S. courts.

According to the National Center for State Courts, this country’s first court-connected ODR system did not launch until 2014, which is when the 14A District Court in Washtenaw County, Michigan, began piloting a platform to resolve certain traffic offenses. Its system was developed by Michigan-based Court Innovations Inc., which calls its ODR platform Matterhorn and was founded by University of Michigan law professor J.J. Prescott.

Other courts started to slowly add ODR programs in the subsequent years, but there were still only 19 sites by the end of 2017, and most were in Michigan, according to an ABA Center for Innovation Report released last year. Experts credit Court Innovations Inc. and forward-thinking court leaders for Michigan’s early leadership in ODR.

It was in 2018 and 2019 when the pace of ODR adoption by courts picked up significantly, with 47 sites being added, according to the Center for Innovation. This brought the total number of court-connected ODR locations to 66 spread across 12 states as of the end of 2019.

Another 23 court-sponsored ODR offerings were launched in 2020 and the first four months of 2021, according to an NCSC report released in May, and most of these programs began providing services during COVID-19.

While there are differences in the various ODR platforms courts are using, most offer core features along the lines of those present in Los Angeles. ODR users can log in from mobile phones, home computers or other electronic devices. Often, they answer a series of questions about the nature of their dispute so the platform can determine what legal issues and potential remedies might be in play. The platform also allows litigants to communicate and share documents securely, and many have neutral human facilitators to help resolve matters. Engaging in a virtual mediation is increasingly an option for litigants as well. If the parties remain at an impasse or don’t meet a deadline for settling via ODR, the traditional court hearing process moves forward.

These court-sponsored platforms provide services for a wide array of case types. Traffic was by far the most common of the 14 case areas offered as of the end of 2019, according to the ABA report, with 34 sites offering ODR for those disputes. Other common case types include warrants, civil debt and small claims.

These practice areas are among the ones in which a high percentage of litigants are self-represented, and this results in many civil cases being uncontested and ending in default judgments or dismissals. Proponents claim ODR can make it easier for these self-represented parties to participate in the legal system because it allows them to handle their cases without having to go to a physical courthouse, a journey that can require taking time off work and finding child care. Litigants who use ODR platforms also typically don’t accrue the costs associated with traditional litigation. Additionally, supporters say ODR can help consumers resolve their legal matters more efficiently and without the uncertainty of stressful issues hanging over their heads for extended periods.

“The time to resolution online is days—not weeks, not months, not years,” says Colin Rule, the co-founder of Modria, an ODR provider that was later acquired by Tyler Technologies.
Early adopters

Proponents argue ODR’s benefits are supported by results in the field, including from some of the early adopters among courts.

In late 2016, Franklin County Municipal Court in Ohio launched an ODR platform focused on City of Columbus tax cases. This subset of small claims matters historically had a high rate of default judgments against defendants because of their lack of participation. In the first year of implementation, 78% of tax cases handled within the ODR system developed by Matterhorn were resolved “either through short-term agreements that resulted in full dismissal (55%) or through some form of long-term payment plan (23%).” These statistics were included in a 2017 report from the Joint Technology Committee, which was created by the Conference of State Court Administrators, the National Association for Court Management and the NCSC.

The joint committee also reported that nearly 30% of users accessed the Franklin County ODR system outside of court hours, and roughly 17% of users resided “outside the county and/or state and would likely have had significant difficulty resolving their cases without the ODR process.”

The positive trends the committee highlighted continued in subsequent years and prompted the court to begin offering ODR for additional case types, says Alex Sanchez, manager of the Franklin County Municipal Court’s small claims and mediation division. “All in all, we met all of our goals for the platform, both in increased access and in reducing the default judgment rate for our small claims cases.”

Also in late 2016, the 20th Circuit Court in Michigan’s Ottawa County began piloting ODR for child support compliance issues. In that county, a parent who fails to pay child support typically needs to appear at a show-cause hearing and could have a warrant issued for their arrest if they do not attend.

The Matterhorn ODR platform Ottawa County started using allowed it to communicate with noncustodial parents regarding compliance with child support orders, including through text messaging. In the first year of ODR implementation, show-cause hearings for failure to pay were down 27%, and failure-to-appear arrest warrants were down 36%, according to the Joint Technology Committee report.

Those trend lines have continued in the years since, according to Kevin Bowling, the court administrator for the 20th Circuit Court. Additionally, for those noncustodial parents who have participated in ODR, the number of them making child support payments has increased by 25% to 30%, Bowling reports.

He says it was especially beneficial for his court to be able to offer families ODR options amid the COVID-19 pandemic, including through a new online system launched for parenting time matters in August 2020.
Saving time

Beyond the consumer benefits, supporters say ODR platforms can also help relieve the administrative burden court systems face in processing cases, particularly in high-volume practice areas.

Officials in Utah, which began rolling out ODR for small claims in 2018 as part of a pilot, say the in-house platform the state developed has benefitted courts in myriad ways.

Judge Brendan McCullagh from the West Valley City Justice Court recalls that prior to implementing ODR, the two-hour blocks of time scheduled for small claims matters would often be booked with up to 50 cases. He says a large majority of these matters would ultimately result in defaults because of one or both parties not being present, but working through the cases to see who was present would eat up valuable courtroom time. ODR helps cull the failures to appear and defaults from the court process because those matters are now managed administratively, according to McCullagh, and the cases that the parties can easily resolve online also no longer require the use of courtroom time. “That leaves us with the cases that really do need to be tried,” McCullagh says.

He says ODR also assists with the small claims cases that come before him for hearings because the process enables the parties to pinpoint the key issues in play. He credits neutral ODR facilitators who communicate with the litigants for their work in that realm and for reminding the parties to bring to court the evidence they believe supports their claims. “So we actually get better-prepared people when it is time for court,” McCullagh says.

An NCSC review of Utah’s ODR system released in December 2020 confirmed the judge’s observations and highlighted that the average time to disposition for ODR cases decreased by five weeks or more for all disposition types other than dismissals.

Judges and private sector officials also report that the large backlogs many courts have in certain case types are often what prompt them to consider ODR options in the first place. Jamie Gillespie, general manager of ODR at Tyler Technologies, says the court shutdowns sparked by COVID-19 only increased the appeal of online dispute solutions in the court system realm. “Everyone realized we are going to have to do something, and this is a really good option to try to help maintain our backlog,” she says.

Along those lines, Cowan expresses hope that the LA Superior Court’s ODR platform for unlawful detainer matters, developed by TurboCourt, which it planned to launch this fall, will help the court work through a backlog of such cases due to COVID-19-related eviction moratoriums.
Adoption obstacles

Despite the ODR successes some court systems have experienced, others have struggled to successfully get their online platforms off the ground.

For example, a pilot program in Florida that got underway last year was slated to feature six judicial districts, but three of the state circuit courts involved withdrew from participating prior to launching services to the public.

The withdrawals came “after numerous delays related to the vendor’s inability to provide a functional platform,” according to a January 2021 report from the state’s Online Dispute Resolution Workgroup. Matterhorn was the vendor for the three circuits that withdrew and one of the three that moved forward with the pilot; Modria was the vendor for the other two circuits that moved ahead with the pilot.

The onset of COVID-19 also presented difficulties in Florida. “There were numerous factors that affected the outcome of the ODR pilot, including product delivery issues, lack of interest in modifying existing court processes, the prevalence of other remote alternatives to ODR such as videoconference-aided court, and stretched resources as a result of COVID-19, among others,” the Florida report said. “These outcomes reveal the need for courts to make careful assessments regarding the purpose and utility of ODR prior to implementing such a service.”

Matterhorn CEO MJ Cartwright agrees that the pandemic made it difficult for some Florida courts to implement ODR systems while simultaneously working to move other functions online.

“The courts we were working with there were overwhelmed,” she says.

However, Cartwright notes the Matterhorn platform for resolving civil traffic infractions online used by the 11th Judicial Circuit in Miami-Dade County has produced positive results. ODR users in that circuit spent an average of 6½ minutes resolving their legal issues compared with the 68 minutes non-ODR users spent, according to the Florida workgroup’s report.

Even though some courts faced challenges, the Florida Supreme Court announced in March that it was expanding the ODR pilot to all interested judicial circuits so it could gather additional information. It blamed COVID-19 and “other factors” for the initial pilots resulting in “insufficient data to fully assess ODR.”

The New York State Unified Court System also has encountered difficulties in launching ODR. Several years ago, it considered implementing ODR for consumer debt collection cases. But legal service providers “mounted an all-out assault on the project, claiming that an ODR process would put vulnerable populations at risk for careless or unscrupulous creditors,” according to a national Joint Technology Committee report. This strong resistance prompted the court system to halt its efforts in the consumer debt area and explore using ODR for a different case type, the report said.

New York ultimately decided to focus on small claims cases, and earlier this year, Manhattan’s Civil Court launched an ODR pilot program for eligible matters via the Matterhorn platform. Anthony Cannataro, who was the administrative judge of New York City’s Civil Court when the small claims ODR offering went live, acknowledges there were “growing pains” with the new online offering in its initial months. The challenges included some technological issues the court system needed to have its outside vendor address.

Cartwright says COVID-19 hindered the launch of ODR in New York, but her team was confident it could help the court with any concerns.

Cannataro, who has since become a justice on the New York Court of Appeals, also says there was minimal usage of the ODR system by litigants in the early going. He expressed hope that expanding the types of small claims cases that could be handled through ODR and offering the program in other geographic locations would boost participation.

“We are not giving up yet,” Cannataro said in the spring. “We are going to try to work out the kinks and move more cases through.”
Buyer, beware?

However, consumer advocates say courts should weigh carefully whether to implement ODR systems in the first place. They especially worry about the use of ODR in debt collection cases, which typically have an attorney representing the plaintiff and a self-represented defendant.

April Kuehnhoff, a staff attorney at the National Consumer Law Center in Boston, says this power imbalance can lead to defendants feeling pressured into entering repayment agreements without raising legitimate defenses they may have. “So throwing an unrepresented party into this negotiating space online really threatens to re-create a lot of the abusive situations that happen in hallways or in courtrooms around the United States.”

Dora Galacatos, executive director of Fordham University School of Law’s Feerick Center for Social Justice, says she also has concerns that the top goal of court-sponsored ODR programs appears to be generating settlements between the parties. This can lead to consumers in debt collection cases entering into “catastrophically ill-advised” agreements even when they have strong defenses, according to Galacatos, whose center was among the groups who opposed New York’s attempt to introduce debt-collection ODR.

“I think that ODR has not promoted the fair administration of justice, which is trying to reach outcomes and adjudicate cases based on the merits of the cases,” she says.

Kuehnhoff says one way courts can address advocates’ concerns is by thinking about how the ODR platforms can be used to facilitate and strengthen consumer access to legal representation. Court systems should also involve consumer advocates in discussions about implementing ODR initiatives early in the process, rather than near the end, which Kuehnhoff says has happened in some instances.

“I think the advocates need to be there from day one,” she says.

Kate Marr, executive director of Community Legal Aid SoCal, headquartered in Santa Ana, California, says she understands and shares the consumer advocates’ worries about ODR. But she also says she thinks there is a place for online dispute resolution under the right conditions. A few years ago, her organization created an ODR platform for small claims cases filed in Orange County Superior Court, the development of which was financed by a $152,200 grant from the Legal Services Corp. The ODR platform was developed by the Justice Education Society of British Columbia.

Marr says the neutral facilitators her organization’s ODR program uses help protect against power imbalances, and many litigants have already gone through a small claims adviser initiative Community Legal Aid SoCal offers to provide more information to the public about such cases. Her organization can also connect litigants with additional resources if it feels like they are unprepared for the ODR process or would not do well using the online platform.

“I think that our ODR program has safeguards built in because it is housed at a legal aid organization,” Marr says.
Room for improvement

Even courts that have experienced some success implementing ODR programs acknowledge there are always opportunities to strengthen the consumer experience.

For example, New Mexico’s initial version of ODR for consumer debt cases required the parties to conduct negotiations through online messages on a web-based platform. In December 2020, the state courts announced that both sides in a case could also use smartphones or tablets to receive text or email updates about their online negotiations and use enhanced chat functions to communicate in real time. Additionally, defendants are now able to make an initial proposal through the ODR platform, developed by Modria, rather than having to wait for the plaintiff to make the first settlement offer.

These changes and others helped boost ODR participation numbers and generated more settlements, according to Second Judicial District Court Judge Jane Levy, who chaired a judicial group that developed the latest version of New Mexico’s ODR.

Nonetheless, on July 1, New Mexico began pausing referrals to ODR for newly filed cases. Levy says this was done so that the court system could work with its vendor to make its platform available in Spanish and possibly other languages in addition to making the system compliant with the Americans with Disabilities Act.

“It felt like if we were really going to do this right and really figure out how to make ODR a really good tool for access to justice, we needed to step back,” Levy says. “To run ODR is to constantly try to improve it.”

Meanwhile, Utah’s court system participated in a usability evaluation of its small claims ODR platform. The review was conducted by the Innovation for Justice Program at the University of Arizona’s James E. Rogers College of Law, and the results were released in September 2020.

In light of data indicating 64% of defendants do not log in to Utah’s ODR platform after receiving a summons, the Arizona research team recommended the ODR registration process be streamlined. The report also recommended that Utah make it easier for ODR users to upload and share documents, noting the process for doing so was not intuitive.

Brody Arishita, the Utah state court system’s application services leader, said court officials welcomed the feedback and were working to implement some of the recommendations. Stacy Butler, director of the Innovation for Justice Program, commends Utah officials for being willing to engage in the usability evaluation of its ODR platform. “The only way to make it better is to learn what is not working and fix it,” she says.

Overall, Butler describes ODR as presenting both risks and opportunities for courts and other groups trying to address issues in the civil justice system. “We can take that broken system and just move into a new technology platform, or we can use the dawn of ODR as an opportunity to repair some of those breaks in the system,” she says.

This story was originally published in the October/November 2021 issue of the ABA Journal under the headline: “Lawyers and Judges Optional? Online dispute resolution promises to increase access to justice, but challenges remain.”


Monday, September 13, 2021

Anti-Tracking Law Invalidly Applied to Man Who Placed Device on Car He Co-Owned


Metropolitan News-Enterprise
Wednesday, September 8, 2021
By a MetNews Staff Writer

Orange Superior Court Appellate Division:

Anti-Tracking Law Invalidly Applied to Man Who Placed Device on Car He Co-Owned

Opinion Says Man Who Ascertained Whereabouts of Estranged Wife Cannot Be Criminally Liable in Light of Unconstitutional Vagueness of Statute

The Appellate Division of the Orange Superior Court has reversed the conviction of a man who ascertained the whereabouts of his estranged wife at a resort in Rancho Palos Verdes through the use of a tracking device on the car she was driving, holding the statute rendering it a misdemeanor to use such apparatus does not give a clear warning that it applies to unauthorized surveillance where the vehicle is co-owned by the defendant.

Acting Presiding Judge Terri Flynn-Peister wrote the opinion which was filed July 21, was not transferred by Div. Three of the Fourth District Court of Appeal to itself, and was publicly posted on Friday. It reverses a conviction by a jury of chiropractor Dustin Livingston Agnelli of a violation of Penal Code §637.7(a) who provides:

 “No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.”

Inapplicability to Owner

Creating a complication is the wording of Subd. (b):

“This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.”

Flynn-Peister recited:

“It is undisputed Agnelli and the victim are registered co-owners of the vehicle. Agnelli clearly consented to having the tracking device placed on the vehicle, but the registered co-owner did not.”

Declaring the statute to be unconstitutionally vague as applied to Agnelli, she said: “The plain language of the statute does not expressly indicate, in this situation, whether consent of all registered owners of the vehicle is required. Nor does the legislative history provide clarity….Common people of ordinary intelligence must necessarily guess, and may differ, on the application of whether consent to all registered co-owners are required to place a tracking device on a vehicle. Indeed, the lower court, counsel, and the jury were uncertain as to the application of this statute when only one co-registered owner provided consent.”

When the jury asked for guidance, Orange Superior Court Judge Joy W. Markman told counsel, outside the presence of the jury:

“Generally...in jury trials, I’m more than happy to provide legal answers to legal questions the jury has. I can’t do it on this one; I don’t have the answer.”

No Definite Guidelines

Flynn-Peister observed that §637.7 “does not provide police officers, prosecutors, and the jury with definite guidelines in order to prevent arbitrary and discriminatory enforcement” and creates “a risk that the jury will convict on a subjective basis.”

On appeal, the Office of state Attorney General conceded that there should be a reversal.

The case is People v. Agnelli, JAD21-05.

Agnelli was found not guilty by the jury of attempting to dissuade a witness from testifying and violating a protective order.

Copyright 2021, Metropolitan News Company



Friday, August 13, 2021

Arrested private investigator says he 'can't even sleep' after shootout with wrong guy


Arrested private investigator says he 'can't even sleep' after shootout with wrong guy

By Damali Keith
Published January 25, 2021
FOX 26 Houston

CYPRESS, Texas - A shootout in a Cypress neighborhood at 8:00 on a Saturday morning leaves one person shot, three men arrested and it’s all because of a case of mistaken identity.

For years, Frederick Randle Jr. has been a private investigator at UMMC Investigations, the company he owns, arresting fugitives who jump bail but this time he was the one arrested and charged.

"It is a nightmare," says Randle. Now the business owner who typically works with attorneys is finding himself in need of one.

"My client is sincerely apologetic. He has hired me and my team of attorneys to represent him," explains Attorney Wilvin Carter.

You see, the night before the shootout Private Investigator Randle was hired to arrest a fugitive child predator. After running surveillance and confirming with a neighbor the man lived there, Randle and his two employees went to the Cypress home, finding the homeowner outside.

"We saw him by the driveway. Then he went into the garage. My employee followed him in and my other employee followed him in and all of a sudden the garage closed on them and it trapped them inside. Then from that point, I heard gunshots," Randle explains.

Randle says the homeowner opened fire on his two employees, Licensed Private Investigators Frederic Siddique and Angel Galvan. He says Siddique ultimately shot back. Galvan was shot in the arm.

"They were behaving in a manner in relation to their training and policy provided to them by the state of Texas," says Carter.

The bounty hunters thought they were in a shootout with their fugitive but the 'wanted man' actually no longer lives there and the homeowner thought he was being robbed.

"I didn’t know that until the police department told me afterwards that it was the wrong guy and my heart just fell out the window. I really feel bad. I can’t even sleep because I’m thinking about the family, the trauma they endured, the children," says Randle.

The three private investigators were arrested.

"The charges are very serious. He, as well as, his employees are charged with Burglary of a Habitation with the Intent to Commit Aggravated Assault with a Deadly Weapon," Carter explains. The punishment ranges from two to twenty years in prison. "We didn’t have any intent to commit any malicious act against anyone. That’s not what we do in our business. That’s not who I am. I’m a well-respected person," says Randle.
The homeowner, his wife, and three grandchildren who were in the house were not shot in the incident. The private investigator who was shot in the arm is expected to survive.
Randle’s attorney says they want to "make the family whole somehow" and they're hoping the DA’s office will review the case, realize this was not a robbery attempt and dismiss the charges.


Judge Rejects Attempt to Immediately Block CDC’s Latest Eviction Moratorium


 The EPOCH Times

US News
Judge Rejects Attempt to Immediately Block CDC’s Latest Eviction Moratorium
By Zachary Stieber
August 13, 2021

A federal judge on Friday announced she will not immediately block the Biden administration’s latest pause on evictions.

The pause is an extension on the previous moratorium, which Supreme Court Justice Brett Kavanaugh deemed an overreach, U.S. District Judge Dabney Friedrich, a Trump nominee, said in her 13-page ruling.

That viewing of the ban enables the judge to block it, but she said she’s prevented from doing so by previous orders from other courts, including the nation’s top one.

Friedrich in May vacated the Centers for Disease Control and Prevention’s (CDC) eviction pause, finding the CDC lacked the legal authority to impose a nationwide moratorium. But she quickly stayed the order on the request of the government, pending appeal.

The U.S. Court of Appeals for the District of Columbia Circuit the following month upheld the stay, asserting the Department of Health and Human Services, which includes the CDC, was likely to succeed when the case was ultimately decided.

The Supreme Court followed by refusing to overturn the ban in place at the time, in a narrow 5-4 decision in which Kavanaugh was the only justice to offer his thoughts regarding how he voted.

Kavanaugh decided to uphold the ban, but said in his concurring opinion that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium” and Congress would have to act when the ban expired.

The CDC’s nationwide eviction pause expired on July 31. The agency soon issued a new moratorium, which applies to around 90 percent of the U.S. population, after Congress failed to pass an eviction pause.

Combined with the four justices who would have vacated the stay, Kavanaugh’s opinion was enough to establish that the Supreme Court would rule against any future CDC action on evictions, plaintiffs, including real estate groups, argued in their emergency motion on Aug. 4 and in court earlier this week.

Friedrich sided with the government defendants in disagreeing.

“Because the four dissenting Justices did not explain their votes, it is impossible to determine which proposed disposition—theirs or Justice Kavanaugh’s—is the ‘common denominator’ of the other,” she wrote.

While several other courts have cast doubt on the CDC’s authority to ban evictions, the Circuit Court’s upholding of the stay, taken with the Supreme Court’s decision not to end the ban, means the judge’s hands are tied, she added.

“These intervening decisions call into question the D.C. Circuit’s conclusion that the CDC is likely to succeed on the merits. For that reason, absent the D.C. Circuit’s judgment, this Court would vacate the stay. But the Court’s hands are tied. The Supreme Court did not issue a controlling opinion in this case, and circuit precedent provides that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law,” she stated.

To lift the stay, plaintiffs must seek relief from the D.C. Circuit, she concluded.

The National Association of Realtors, which is one of the plaintiffs, told The Epoch Times in an email that plaintiffs are planning an appeal to the D.C. Circuit Court and, if necessary, the Supreme Court.

“We are confident in our position that this unlawful eviction ban will soon come to an end. Federal and state governments should be focusing all energy on the swift distribution of nearly $50 billion in rental assistance available for struggling tenants,” a spokesperson said via email.

White House press secretary Jen Psaki said the administration “believes that CDC’s new moratorium is a proper use of its lawful authority to protect the public health.”

“We are pleased that the district court left the moratorium in place, though we are aware that further proceedings in this case are likely,” she said in a statement.