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Saturday, January 30, 2016

First Amendment Not A Shield Against Criticism For Cuba Trip

Ten New Jersey State Assemblymembers traveled briefly to Cuba this past week and are getting blasted for it. But one of the targets thinks the Bill of Rights provides him with a "safe space" from criticism.

One of the members, Assemblyman Reed Gusciora, denounced his critics by saying, "It's disappointing some people in the Cuban-American community want to stifle our rights of free speech and free association." 

It is disappointing, to put it mildly, to have any elected official impute dark motives to anyone questioning his positions, statements or actions. The claim that one's critics want to "deny me my rights" is as insidious as it is flatly overused. 

There is no right to be insulated or immunized against criticism. That would actually require the type of law expressly prohibited by the Framers of the Constitution when they enacted the First Amendment.

Assemblyman Gusciora needs a brief constitutional law primer. The First Amendment prohibits government interference with the rights of free speech and free association. This is what it says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (Emphasis added)

It says nothing about protecting people from unwanted criticism. In fact, invoking the First Amendment when one is criticized is a backdoor way of asserting a privilege to speak and act with immunity from criticism. That position, incidentally, requires prohibiting the freedom of speech of one's critics.

If one is to serve the public, one should be strong enough to withstand criticism (fairly or unfairly) without resorting to unconstitutional remedies.




Sunday, January 24, 2016

Blizzard Jonas, Disaster Prep And When Businesses Shut Down



As of the time of this writing, the Blizzard Jonas* has deposited more than two feet on much of the urban Interstate 95 corridor from Washington DC to Philadelphia to New York City and points northeast.

(* - the unofficial name given to major winter storms by The Weather Channel, similar to the official name designations used by the National Hurricane Center)

Plenty of elected officials have warned people to get home and stay home in advance of the storm. Not unusual for truly "major" storms. New York City Mayor Bill DeBlasio urged businesses to close so that their employees could get home and not risk being stranded when that city began shutting down escape routes like parts of its transit system, and bridges and tunnels leading out of the city towards New Jersey. (Note: When government does that, it essentially uses its own force majeure to compel a business to shut down. There is such a thing as business interruption insurance, for precisely this type of situation; whether that is worthwhile is a different question.)

How a business reacts to a crisis is critical to its future. Certainly, a business which stays open in these conditions may get a revenue windfall because all its competitors may be closed. The business may also get positive public relations by noy gouging its customers by charging $20 for a liter of water or some other idiocy by "having been there" for its customers in their time of desperation need. But I consider these positive crisis moments for a business because they are opportunities for the business to distinguish itself from its competitors.

These opportunities are rare, they often occur by surprise and they offer free publicity. That is a perfect storm for taking advantage.

This is when a young business can make a name for itself. Consider these situations as challenges and opportunities to market yourself.

Eric Dixon is a New York lawyer, business consultant, advisor to several young privately-held companies, and advisor to and part-owner in several blockchain technology companies. Contact him at EDixon@NYBusinessCounsel.com if you think you need help with your business or potential enterprise. 


Monday, January 18, 2016

Candidate Immunity? When the Justice Department Targets Candidates

Your status as a candidate might delay official action by the Department of Justice against you, according to this 2007 publication from the Department's Public Integrity section.

That's because DOJ has long aimed to "ensure that an investigation is timed in a manner that does not interfere with the adjudication of the election itself." (See page 87). The DOJ guidelines also caution prosecutors to consider "whether an investigative step under consideration has the potential to affect the election itself." (Page 91) Similarly, the guidelines state an exception to this approach "may" apply where "it is possible" to both complete an investigation and file charges "prior to the period immediately before an election." (See pages 92-93) 

As such, one may infer an unofficial 'safe harbor' from prosecution for candidates who are or may be under federal criminal investigation, which might delay -- but not preclude or prevent -- the timing of an indictment, in order to avoid affecting the outcome of an election.

There are campaign or candidate partisans who fervently hope that legal action, e.g., an indictment, will accomplish for them what an election might not. However, these DOJ guidelines suggest (but do not mandate) that official discretion should be exercised to avoid interfering with the outcome of an election.

The Justice Department publication makes for a fascinating read for those of you with the patience to read through hundreds of pages of analyses as to the commonality of broader types of corruption extending beyond crimes touching on the right or process of voting. However, readers are cautioned that the publication, released in 2007, predates the dawn of modern social media which has created new avenues for opportunities for mischief, e.g., new media.


Sunday, January 17, 2016

The File: The Trump New York Values

Upon request, here is the first report on the voluminous history of political contributions by Donald Trump.
CHECK BACK FOR UPDATES AS MORE DATA IS POSTED.

Investigators look for the facts. So, on the issue of "New York values," what are the facts regarding Donald Trump, the subject of the phrase?

Until just a few years ago, Donald Trump gave, and gave lavishly, to leading liberal Democrats in New York City, New York State and across the nation.
  • Helping Obama Get Out The Vote?:  In 2008, Trump was helping Barack Obama where it counted: with money. Leading up to the general election, Donald Trump gave Democratic Party organizations at least $61,000 to help Barack Obama win, including $5,000 to the Democratic Senatorial Campaign Committee, and one $50,000 check to the New York State Democratic Party in July 2008
    when Obama's nomination was assured and there were no major contested races for Democrats in New York that year -- so it's reasonable to assume the money had to go for get out the vote and other support operations for the general election ticket with Obama at the top of the ballot!
  • NEW! You can infer Donald Trump's indirect support for Barack Obama continued after his election to the White House in 2008. This is not a typo -- Trump personally gave $50,000 to former Obama chief of staff Rahm Emanuel's Chicago mayoral campaign in December 2010. 
  • NEW! $5,000 in 2002 to former Illinois Governor Rod Blagojevich, who was sentenced to 14 years by a federal judge after being convicted on 18 federal felony corruption charges arising from actions he took as Governor. Also note in the same photo the two contributions to the Cook County Democratic Party. These are not one-off, isolated contributions. 
  • Another big-city Democrat also got a contribution from Donald Trump. In November 2008, Trump gave $1,000 to longtime Los Angeles Mayor Antonio Villaraigoisa. 
  • Dinkins over Rudy: The trend line of supporting liberal, big-government, destroy-the-middle-class mayors goes back a long time. When Rudolph Giuliani ran for Mayor of New York City in 1993, Donald Trump gave to his opponent, Democrat incumbent David Dinkins, a total of $5,500.
  • After 9/11 and when Rudolph Giuliani was term-limited, Donald Trump gave to the far-left Mark Green (who was the co-founder of the ultra-progressive Air America Radio Network, now defunct), running against Michael Bloomberg,
    $4,500 in October 2001.
  • In the years after 9/11, Donald Trump gave $10,200 to former Sen. Hillary Clinton (D-NY) and at least $11,000 to Rep. Charles Rangel (D-NY)(including this $2,400 contribution in 2007), and $6,000 more to Senator Charles Schumer (D-NY) as recently as 2010
  • Scandal? No Big Deal. Trump has given thousands to two elected New York officials whose scandals drove them from office, thousands to former Governor Eliot Spitzer (aka "Client 9")
  • There were thousands more to former House Representative Anthony Weiner (aka "Carlos Danger" from the sexting scandals, and current husband of former Hillary Clinton aide Huma Abedin).
  • Trump also gave thousands to a campaign committee for now-convicted former New York State Assembly Speaker Sheldon Silver. 
  • Between 2001-09, Trump gave at least $64,000 to current New York State Governor Andrew Cuomo including this big $25,000 donation; 
  • Trump gave congressional Democrats, leading up to the 2006 midterms, at least $28,500 including this big $20,000 donation to the Democratic Congressional Campaign Committee in June 2006;
  • Trump gave $2,400 to Senate Majority Leader Harry Reid (D-NV) as recently as March 2009. 
  • As recently as October 2010, Trump gave ultra-liberal New York State Attorney General candidate Eric Schneiderman $12,500.
    Schneiderman is considered to be an overregulator of business (see how his office has tried to regulate bitcoin), believing that in New York the anti-business sentiment helps you win elections. 
Eric Dixon is a New York based business and investigative lawyer.

Wednesday, January 13, 2016

Crashing Real Estate: Feds To Target Secret Condo Buyers

The value of high-end residential real estate faces an imminent new threat: A curious federal initiative to investigate certain all-cash purchases of condos and other properties by entities which shield the individuals behind them from public disclosure. (Here is a link to the article which will run in Thursday's New York Times.)

Most real estate records do reveal information about property owners. It isn't easy to track down the individuals behind them. Government authorities, though, have access to entity records (e.g., corporations, partnerships, limited liability partnerships and so on), tax records and so on. The information is not easily unraveled, but the idea behind these entities is often anonymity which is important to those in the public eye. A second common motive is asset protection -- which is not illegal, although definitely frustrating to creditors and, sometimes, the government authorities. 

This action, however, threatens to have a serious and unintended consequence, one which I suspect will dwarf the government's reasons (whatever they are) for this initiative.

Not everyone who wants anonymity has a nefarious reason for it. The number of "bad actors" who buy real estate is certainly low compared to the overall universe of all-cash buyers.

The main reason buyers will pay in cash is that, when you have the wealth to buy a high-end property, you generally don't need to finance it, nor do you want to disclose personal information to strangers working in various levels of the banks. Sellers also prefer all-cash buyers because they want the comfort of a buyer who can close whenever they bring the cash. Sellers don't want the uncertainty of a mortgage contingency which can delay a deal for months or scuttle it altogether.

But why would our government be overly concerned with what I'll call "bad actors" (whatever the reason for that label)? 

After all, real estate is perhaps the least portable valuable asset. It is also probably one of the easiest to seize, encumber or control. As such, one would think that the government would want bad actors to put their money into precisely this type of asset class, and precisely in the United States. 

The unintended consequence? This will not increase demand for American real estate. It will reduce the demand pool for real estate. That will hurt current owners. 

So, exactly who wins here? That's my question.

What's yours?

Eric Dixon is a New York lawyer who handles business and investigative matters for a variety of clients, but none in this field. 

Tuesday, January 12, 2016

What The State Of The Union Teaches About Advocacy

Great lawyers and politicians have much in common.

When a politician is also a lawyer -- and current President Obama is one, and a former law professor to boot -- then, watch out! (Among the lawyers running for President in 2016: Former Senator Hillary Clinton, former U.S. Attorney and current New Jersey Governor Chris Christie, and Senator Ted Cruz of Texas.)

That's because such skilled orators are great advocates.

And what makes a great advocate is (1) knowing your target audience, (2) delivering the message you need to, to your target audience, and (3) knowing whom you can ignore.

That third point is shocking and dismaying to many -- but it is a critical point in business. It is from that truth that the success in lawyering, whether in a negotiation, mediation or to a lesser extent, before the (increasinglyy rare) jury at trial, flows. 

You need to know who matters, and who doesn't.

While the words spoken are meant for a certain audience, and sometimes are targeted precisely for a certain group or constituency (the phrase you'll hear is "interest group"), it is just as important to listen to who doesn't get mentioned, whose interests don't get mentioned. The absence of those mentions sends two crucial messages. Understanding those silent messages is key to knowing how certain "buttons get pushed."

One message is to the favored group, allies or a target whom you need to persuade. The message consists of emphasizing their interests, needs or priority status. Appealing to ego is a great move when you need just one or two people to see things your way, but it also works in the broader-public-appeal arena of politics. The best thing is that silence towards others is easily used to imply "most favored nation" status towards your favored audience, and allows you to avoid ever having to explain what you never said.

The second message is targeted at the disfavored. It conveys the recognition of who is in control, whose opinion matters, and who doesn't matter at all. 

Often in legal situations, there are very few people whose opinions really matter. 

There may be eight people around the table, but there is so often just one opinion leader and perhaps one trusted adviser. That's it. Everyone else? They're often just there to bill hours, look good and do enough to justify keeping their job before someone notices they're really superfluous.

In court, it's really just the judge and, in a jury trial, a few people at most in that jury. There are always leaders (whose statements carry great weight) and dominators (who take up much of the space but do not necessarily add much value). Again, most of the rest are sheep. Followers. They don't count.

So...tonight's lesson is: Know. Your. Audience.

Because the people who run things never forget that lesson.

Eric Dixon is a New York lawyer who works with private businesses and organizations on various legal, regulatory and management matters. 



Tuesday, January 5, 2016

With Relief Pitchers, Stats DO Lie

"Statistics are like bikinis," said my late, great college history professor Hans Trefousse. "What they reveal is interesting, but what they conceal, is essential!"

These days, with eggshell-skull ninnies running the asylums we call higher education and, increasingly, corporate America, a comment like Trefousse's might get him to lose tenure or fired. But he is smack on whether we are talking about government statistics or the merits of candidates for the Baseball Hall of Fame.

Particularly with relief pitchers.

The very role of relief pitcher evolved in the 1960s and 1970s. Typically, you needed a pitcher who could work his way out of a jam and keep inherited runners from scoring -- and then finish up the game!

Those were the days of the eight or nine-man pitching staff. Total. Starters and relievers. Today, some entire clubs have an eight man bullpen!

The role of the reliever was different. The relief pitcher was not a "closer." He was a "fireman" who would have a speciality of pitching and excelling in precisely high stress situations and preventing opposing runners on base from scoring.

Think Rollie Fingers, Goose Gossage, Tug McGraw and Sparky Lyle. (Each pitched in several postseasons in their 60s-70s era.)

Those firemen often were called I whenever the starter got into trouble. And that could be the fifth inning or even earlier! It was not uncommon for these firemen to have the game-is-on-the-line moment in the seventh inning. And the firemen would carry the rest of the game.

This is in wide contrast to today's relievers whose roles seem hyperspecialized based on the inning and not the situation. (This is an explicit criticism of today's by-the-book managers who are using the wrong book!) Hence, we have a sixth inning guy, a seventh inning guy, an eighth inning guy and then your closer.

To me, and maybe to you, there's a recipe for using your third best option in your most dangerous crisis.

Is that any way to run your company? Is that any way to manage a crisis? Is that any way to win a negotiation?

Conversely, your best reliever might be facing the easiest three outs in the ninth. That leads to ridiculous save totals from some relative newcomers who can chuck the ball 95 miles an hour but who cannot necessarily put out a fire.

Some of the very best relievers were the ones mentioned above -- only Gossage was a fastball pitcher -- and they did their job with guile and guts. Men like split-finger pitcher Bruce Sutter, the submarine pitcher Dan Quisenberry, sidearmer Kent Tekulve and more recently, the slider/change-up artist John Franco.

This I believe: none of the aforementioned pitchers blow three saves in five games in the World Series. Because those pitchers were the best options on their clubs and were brought in at the most crucial crises.

And not only based upon what inning of the game.

Is that any way to manage your team?

Is that any way to win?

Whether it's your lawyer or your late inning reliever, when you see fire, you need a fireman.

Because you use your talent to fulfill the role you need, the role that the crisis demands.

In baseball, as in business, misunderstanding the real role of your talent is a sure fire way to underutilize your talent and to risk being caught using less than your best.

And don't we all deserve the best?