Law firms’ websites are different and more difficult to create and manage than most other business’ sites. There are several ways to ensure your firm will generate new leads from your law firm website:

Keep the look professional

Your online appearance should reflect the firm it will represent, as well as the type of clients you’re seeking to bring in for business. You want your site to speak to the clients you want, and the aesthetic should be a strong representation of that.

Display your capabilities

Brag a little. Let your clients and future clients see why you’re great. Show off your accomplishments, awards, recognitions, and successes. If you’ve received ratings and good reviews, display them on your site.

Showcase vivid and relevant images

Images that are high quality and eye catching can really sell your business, and your site. Choose images that reflect your firm and communicate the personality and professionalism to represent your company. Avoid using anything that could be deemed controversial in any way.

Be easy to get ahold of

When clients want to get ahold of you, they want to do it hassle-free. Contact information should be readily available from anywhere on your site- without being intrusive.

Make your site easy to use

Your site should be professional and well-constructed; however the design needs to be simple enough that anyone can navigate its pages without difficulty.  Organization and format are very important aspects of a successful site.  You’ll want to double check that links are not broken and go to the right places.  A single bad user experience can generate a reputation you want to avoid.

Keep up with growing trends

Sure, you may despise social media and blogging. However, it’s important to keep up with what’s going to help market your firm, not personal preference. Have social media icons on your site that link to quality, well-managed pages. Keep up with your blogging, and use video to give clients a feel of the personality your firm has to offer.  These are the things that will help set you apart.

Stay within Bar guidelines

It’s good to keep your page current and refreshed, however you don’t want to do so without consulting with your State Bar first. Market your firm ethically by making sure you’re always within the guidelines, even when creating more conversions.

Keep in mind that creating a successful website that generates leads in the legal world is complicated and intricate.  The goal of it is to not only portray the goals of your firm, but to address your client base based on their needs as well.

Contact the legal marketing pros at LexisNexis to get started with your free consultation.

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A split 10th Circuit U.S. Court of Appeals panel on Oct. 1 reversed a trial court’s decision finding that a clothing retailer violated Title VII of the Civil Rights Act of 1964 when it refused to hire a female due to her head scarf (Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., et al., No. 11-5110, 10th Cir.; 2013 U.S. App. LEXIS 20028).

Abercrombie & Fitch Stores Inc. is a retail clothing company that operates stores across the United States under a variety of brand names, including Abercrombie & Fitch, abercrombie and Hollister. Abercrombie requires employees in its stores to comply with a “Look Policy.” Employees must dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores. Notably, the policy prohibits employees from wearing black clothing and “caps,” although the policy does not explicate the meaning of the term “cap.” An employee who doesn’t comply with the Look Policy may be subject to disciplinary action up to and including termination.

During the interviewing process for sales-floor employees (referred to by Abercrombie as “models”), Abercrombie managers assess applicants on appearance and style.

They are supposed to inform applicants of various aspects of the job, including the Look Policy. If a question arises during the interview regarding application of the Look Policy, or if a prospective employee requests a deviation from the policy, the store manager is instructed to contact Abercrombie’s corporate human resources department (HR) or his or her direct supervisor. HR managers may grant accommodations if doing so would not harm the brand.

Religious Covering

Samantha Elauf applied for a model position at the Abercrombie Kids store in Tulsa, Okla., in mid-2008. She was 17 at the time and claims to be a practicing Muslim. Elauf had previously purchased and worn Abercrombie clothes.

Prior to her interview, Elauf discussed with a friend, Fasia Sepahvand, who worked at the same location, whether wearing a hijab, a head scarf, to work would be permissible. Elauf has worn a hijab since she was 13 and claimed that she did so for religious reasons.

Sepahvand took Elauf’s question to Assistant Manager Kalen McJilton. McJilton noted that he had previously worked with some who wore a white yarmulke and suggested that he didn’t see any problem with Elauf wearing a head scarf, especially if she didn’t wear one that was black. Abercrombie had a no-black-clothing policy.

Elauf then met with Assistant Manager Heather Cooke to interview for the model position. Cooke had observed Elauf while she was working elsewhere in the mall and had seen Elauf wearing a head scarf prior to the interview. She “did not know” Elauf’s religion, but “assumed that she was Muslim” and “figured that was the religious reason why she wore her head scarf.”

Questioning The Headscarf

During the interview, Elauf wore an Abercrombie-like t-shirt, jeans and a black head scarf. Elauf never informed Cooke that she was Muslim and never brought up the subject of her head scarf. Cooke scored Elauf in Abercrombie’s official interview guide. Elauf scored a six, which “meets expectations” and amounts to a recommendation that Abercrombie hire her. Although Cooke believed Elauf was a good candidate, she was unsure whether the headscarf would be an issue. Cooke’s direct supervisor was unable to answer her question about Elauf’s headscarf, so Cooke consulted with Randall Johnson, her district manager.

Johnson said Elauf should not be hired because the head scarf was not a clothing item consistent with the company’s Look Policy. Cooke claimed that she told Johnson that Elauf was Muslim. Johnson denied being told that by Cooke. At Johnson’s direction, Cooke threw away the original interview sheet and changed Elauf’s score. Elauf was not offered a job. A few days later, Elauf learned from Sepahvand that she had been denied a job because of her head scarf.

EEOC Complaint

The Equal Employment Opportunity Commission sued Abercrombie in the U.S. District Court for the Northern District of Oklahoma on Sept. 17, 2009. The lawsuit, filed on behalf of Elauf, alleged violations of Title VII of the Civil Rights Act of 1964 on the grounds that Abercrombie “refused to hire Ms. Elauf because she wears a hijab” and “failed to accommodate her religious beliefs by making an exception to the Look Policy.” It sought injunctive relief, back pay and damages.

Abercrombie argued that Elauf failed to inform it of a conflict between the Look Policy and her religious practices. It further argued that the proposed accommodation – allowing Elauf to wear a head scarf – would have imposed an undue hardship on the company. Furthermore, it challenged Elauf’s assertion that she had a bona fide, sincerely held religious belief regarding wearing the head scarf.

The parties filed cross-motions for summary judgment on issues concerning liability. The District Court applied the burden-shifting framework established in McDonnell Douglas Corp. v. Green (411 U.S. 792 [1973]). Under that framework, the court found that the EEOC established a prima facie case through evidence that Elauf wore her head scarf based on her a bona fide, sincerely held religious belief. Further, it reasoned that Abercrombie had notice that she wore it because of her religious belief and refused to hire her because of it. The parties went to trial on damages. The jury awarded the EEOC $ 20,000 in compensatory damages. The EEOC’s request for prospective injunctive relief was denied. Abercrombie appealed.

Ruling Reversed

A split 10th Circuit panel reversed the District Court’s denial of summary judgment to Abercrombie and the grant of summary judgment to the EEOC. It remanded with instructions to vacate its judgment and enter judgment in favor of Abercrombie and for further proceedings consistent with this opinion.

“[W]e hold that, under the governing substantive law, Abercrombie is entitled to summary judgment because there is no genuine dispute of material fact regarding this key point: Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy. Furthermore, it follows ineluctably from the logic and reasoning of our decision that, in granting partial summary judgment to the EEOC, the district court erred,” Judge Jerome A. Holmes wrote for the majority.

Judge Paul J. Kelly Jr. joined in the opinion.

Dissenting in part, Judge David M. Ebel opined that while he agreed that it was an error for the District Court to grant summary judgment to the EEOC, a jury should decide whether Abercrombie is liable for religious discrimination because the EEOC has established a prima facie failure-to-accommodate claim.

“I am not suggesting that the employer has a general duty, during a job interview to give the applicant a comprehensive ‘laundry list’ of all of the employer’s work policies in order to determine if those job requirements might possibly conflict with an applicant’s unstated religious beliefs or practices. I agree that the burden ordinarily remains with the job applicant to inform the employer of any conflict between the job’s requirements and her religious beliefs and practices, because it will usually be the applicant, and not the employer, who knows of such a conflict. However, I am also not suggesting, as the majority appears to be, that a job applicant must initiate a general discussion of her religious beliefs during the job interview just in case her religious beliefs and practices might conflict with some unstated policy or work rule of the employer. The EEOC has shown here that it was the employer, Abercrombie, which had superior knowledge of a possible conflict between its Look Policy and Elauf’s apparent religious practice of wearing a hijab. Under those facts, established after viewing the evidence in light most favorable to the EEOC, Abercrombie had a duty to initiate a dialogue with Elauf by informing her that Abercrombie’s Look Policy prohibited its sales models from wearing headwear and then inquiring whether she could comply with that policy, or whether Abercrombie could accommodate her belief in some reasonable way. Said another way, a jury could find Abercrombie liable under Title VII for assuming that Elauf was a Muslim who wore a hijab for religious reasons and that she would insist on wearing a hijab while working in one of Abercrombie’s stores, and then, without initiating a dialogue with Elauf to verify those assumptions, refused to hire Elauf based upon the company’s assumptions,” the judge wrote.

Counsel

Mark A. Knueve, Daniel J. Clark and Joseph C. Fungsang of Vorys, Sater, Seymour & Pease in Columbus, Ohio, and Jon E. Brightmire of Doerner, Saunders, Daniel & Anderson in Tulsa, Okla., represent Abercrombie.

James M. Tucker, P. David Lopes, Carolyn L. Wheeler and Daniel T. Vail of the EEOC in Washington, D.C., represent the EEOC.

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A common successful method to increasing traffic and visibility is through paid search.  A well developed, strategic PPC campaign can increase the amount of targeted visitors your site while increasing qualified leads.  This is extremely beneficial when it comes to spreading the word and becoming more visible in search results.  However, once a potential client finds their way to your site, what can you do to guarantee more conversions once they’re there?  What can you, as a company, do to prod customers into requesting more information and quotes?  Engage them!

A great way to engage your customers once they’re on your home page is to incorporate a live chat system onto your site.  This will create an instant connection between your company and any potential customer who lands on your site.  Because the connection is a personal, live operator, clients feel comfortable and at home knowing that they can talk to a real person.

Generally, paid search advertising involves your ad popping up in a browser search when triggered by certain keywords you’ve selected, and/or a particular geographical that you targeted.  With billions of Google searches each month, this immediately guarantees your site some relevancy and visibility.  Taking that a step further is where you get the conversions you’re looking for.  Visibility to clients alone is not enough to convert.

That’s where building relationships and establishing a rapport with those who are landing on your pages with live chat can be essential to increasing your return on investment.

When a potential client clicks on your homepage, more often than not the first thing to catch a client’s attention is the aesthetic value of your page.  While your site should have an appealing design, instead of only relying on that to keep clients long enough to convert- use live chat to capture and keep them longer than design alone ever could.

Live chat operators can be personal with customers and ask and answer questions that your site maybe didn’t have the answers to.  The operators can also collect information from visitors and turn the once paid search click into a lead and eventually a conversion.  Talking to a live person is always more appealing to visitors than filling out a form or signing up for an email they may not even need or want.

A study conducted by Forrester Research found that “Many online consumers want help from a live person while they are shopping online; in fact, 44% of online consumers say that having questions answered by a live person while in the middle of an online purchase is one of the most important features a Web site can offer.

It is always better to form engaging relationships; this will generate more of a return on your investments than paid search alone ever could.  Consider adding live chat to your business’ home page in order to create a more enticing environment. Contact a LexisNexis Law Firm Marketing specialist today to get started.

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Bankrupt AMR Corp. on Oct. 2 moved in the U.S. Bankruptcy Court for the Southern District of New York for approval of $ 785 million in post-petition financing, also called debtor-in-possession (DIP) financing, which would be secured by planes currently in American Airlines’ fleet (In Re: AMR Corporation, No. 11-15463, Chapter 11, S.D. N.Y. Bkcy.).

Bankruptcy

AMR filed for Chapter 11 bankruptcy in 2011. American Airlines Inc., as an affiliate of AMR, filed for Chapter 11 bankruptcy at the same time.

AMR seeks $ 785 million in DIP financing through the enhanced equipment trust certificate (EETC) financing market, which the company says is offering interest rates “near historic lows.”

AMR contends that in its effort to improve liquidity and achieve a competitive and sustainable cost structure it has considered various potential financing arrangements and that based on the low interest rates available in the EETC financing market, new EETC financing is in the best interest of its stakeholders.

DIP Financing

AMR says it has previously obtained DIP financing through other EETCs; specifically, the existing 2013-2 EETC under which American Airlines issued $ 1,408,113,000 in American Pass Through Certificates, called Series 2013-2 Class A Certificates with an interest rate of 4.95 percent.

The new 2013-2 EETC would be secured on a first priority basis by various planes in American Airlines’ fleet. Specifically, the EETC would be secured by 41 Boeing 737-823s, 14 Boeing 757-223s, one Boeing 767-323ER and 19 Boeing 777-223ERs, AMR says.

AMR is represented by Michael E. Wiles, Richard F. Hahn and Jasmine Ball of Debevoise & Plimpton in New York and Stephen Karotkin and Alfredo R. Perez of Weil Gotshal & Manges in New York.

View today’s headlines and listen to the latest podcast at www.lexisnexis.com/legalnews. Do you have news to share? Interested in writing a commentary article? Email the Mealey News Desk atMealeys@LexisNexis.com

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The federal government on Sept. 30 filed in Virginia federal court a complaint and settlement agreement in which Chevy Chase Bank F.S.B. agreed to pay $ 2.85 million to resolve claims that it engaged in a pattern of discriminating against qualified African-American and Hispanic borrowers when providing them with mortgage loans between 2006 and 2009 (United States of America v. Chevy Chase Bank, F.S.B., No. 13-01214, E.D. Va.).

According to the complaint, which was filed in the U.S. District Court for the Eastern District of Virginia, the lender violated the Fair Housing Act (FHA) by charging higher prices on mortgage loans provided to African-American and Hispanic borrowers compared to similarly situated Caucasian borrowers. According to the proposed settlement agreement, 3,100 African-American and Hispanic borrowers were victims of Chevy Chase Bank’s practices and will receive monetary compensation.

The government filed the present suit after the U.S. Department of Justice received a referral from the Office of the Comptroller of the Currency in 2010. Capital One N.A. purchased Chevy Chase Bank in 2009, but the claims in the lawsuit relate only to mortgage loans originated by Chevy Chase Bank.

The terms of the proposed settlement are subject to a 30-day public comment period.

Steve Gordon of the U.S. Attorney’s Office in Alexandria is counsel for the government. Anand Subram Raman and David Emmett Carney of Skadden Arps Slate Meagher & Flom in Washington, D.C., represent Chevy Chase Bank.

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In a Sept. 25 order denying a social media aggregator firm’s motion to reconsider a 2012 ruling that found it guilty of spam and computer fraud violations against Facebook Inc., a California federal judge also determined that the company’s CEO “authorized and directed” the illegal activities, making him personally liable under the statutes (Facebook Inc. v. Power Ventures Inc., et al., No. 5:08-cv-05780, N.D. Calif.; 2013 U.S. Dist. LEXIS 137890).

Launch Promotion

In December 2008, Facebook sued Power Ventures Inc.

and CEO Steve Vachani in the U.S. District Court for the Northern District of California. Facebook alleged violations of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), the Computer Fraud and Abuse Act (CFAA), California Penal Code Section 502, the Digital Millennium Copyright Act (DMCA) and California Business and Professions Code Section 17200. Facebook also alleged federal and state copyright and trademark infringement.

Power Ventures operates a website at power.com, where it offers to integrate Internet users’ various social media accounts into a single experience. To do so, a Facebook user would provide his or her login information to Power Ventures. Thereafter, Power Ventures would “scrape” certain information from the user’s Facebook account and display it on power.com.

To help launch its website, Power Ventures offered its users $ 100 if they invited and signed up the most new users to its service. Participating users provided their Facebook friends list, to which Power Ventures sent emails inviting these friends to sign up for power.com. These messages came from an “@facebookmail.com” email address and purported to be from “The Facebook Team.”

Summary Judgment

In its complaint, Facebook asserted that it never gave Power Ventures permission to use its proprietary information or to send such messages. Facebook called the messages deceptive because they did “not properly identify the initiators of the messages, nor [did] they provide clear or conspicuous notice that the messages [were] advertisements for” power.com.

The DMCA, copyright, trademark and Section 17200 claims were ultimately dismissed. The parties filed cross-motions for summary judgment on the remaining claims. In a Feb. 16, 2012, order, Judge James Ware granted Facebook’s motion and denied the defendants’ motion, as the claims pertained to Power Ventures. However, the judge ordered further briefing on Vachani’s individual liability. The case was reassigned to Judge Lucy H. Koh.

The matter was stayed from August 2012 through April 2013 in light of the defendants’ bankruptcy filings. After the stay was lifted, Power Ventures filed an Aug. 1 motion for leave to file a motion for reconsideration of the February 2012 order. That same day, Facebook filed a supplemental memorandum to support its request for permanent injunctive relief.

Reconsideration Denied

Judge Koh denied the defendants’ motion, finding that they failed to meet their burden to request reconsideration. Regarding the CAN-SPAM violations, the defendants contended that Facebook had actually generated the accused emails and that no one had complained about being misled by them, making the emails not materially misleading and not in violation of the act. Judge Koh found that these were “essentially the same arguments” the defendants made previously, which were considered and rejected by Judge Ware.

Judge Ware correctly found that the messages’ listing of an “@facebookmail.com” email address was materially misleading, Judge Koh said, because the messages “failed to provide the recipient[s] with an ability to identify, locate, or respond to Defendants,” as required by the CAN-SPAM Act. As such, Judge Koh found no clear error in the 2012 ruling.

The defendants repeated many of their previously raised arguments concerning the CFAA and the related Section 502, Judge Koh said. Judge Ware properly determined that Facebook established that it experienced “loss” and “damage” related to its actions to investigate and defend against Power Ventures’ actions, Judge Koh found. Per Gordon v. Virtumundo Inc. (575 F.3d 1040, 1053 [9th Cir. 2009]), a CAN-SPAM claim requires a showing that a plaintiff was “adversely affected by a violation of . . . or a pattern or practice that violates” the act, Judge Koh said, finding that Facebook amply met that threshold.

As such, she also agreed with Judge Ware that Facebook had established standing under the statutes, concluding that reconsideration was not warranted.

Personal Liability

Judge Koh cited Commission for Idaho’s High Desert Inc. v. Yost (92 F.3d 814, 823 [9th Cir. 1996]), which held that “a corporate officer or director is, in general, personally liable for all torts which he authorizes or directs or in which he participates, notwithstanding that he acted as an agent of the corporation and not on his own behalf.” She found that “the undisputed facts prove that Vachani authorized and directed” the illegal activities.

Vachani admitted that he controlled and directed the “Launch Promotion” and that the campaign was his idea. Power Ventures testified that Vachani was “responsible for developing the technology to allow Power . . . to access the Facebook website” after Facebook attempted to block Power Ventures’ activities. Judge Koh held that this established that Vachani was personally liable for the CFAA, CAN-SPAM and Section 502 violations of which Power Ventures was found guilty in Judge Ware’s ruling.

Relief

Facebook is entitled to recover monetary damages under the CAN-SPAM Act, Judge Koh said, finding this to be appropriate in light of the fact that the defendants “undisputedly utilized the incentive of monetary payments as a means to access Facebook users’ accounts.” However, the judge found Facebook’s requested $ 18 million award to be “unnecessary to address the deterrent and punitive purposes of a statutory damages award.” She awarded Facebook $ 50 for each of the 60,627 spam messages that Power Ventures sent, for a total statutory award of $ 3,031,350.

In light of the size of this award, Judge Koh declined to treble the amount, as Facebook requested. She held that the award and a permanent injunction “will adequately serve the purpose of punishment and deterrence in this case.” Judge Koh also found that Facebook was entitled to compensatory damages under the CFAA, awarding the social network an unspecified amount under the act.

David P. Chiappetta and Joseph P. Cutler of Perkins Coie in Menlo Park, Calif., represent Facebook. Power Ventures and Vachani are represented by Amy Sommer Anderson of Aroplex Law in San Francisco.

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While the Supreme Court’s recent rulings on same-sex marriage were a significant victory for the LGBT community, discrimination still exists in the courtroom. The United States Court of Appeals for the Ninth Circuit is currently considering whether lawyers should be able to use peremptory challenges to exclude jurors based on sexual orientation.

Peremptory challenges are part of the jury section process. Attorneys are permitted to exclude a potential juror without the need for any reason or explanation. In Batson v. Kentucky, the U.S. Supreme Court held that the Equal Protection Clause of the U.S. Constitution prohibited the use of peremptory challenges to exclude prospective jurors based on their race. The precedent has been expanded to include gender, ethnicity and any other classification that warrants heightened judicial scrutiny.

The question before the Ninth Circuit is whether sexual orientation should also fall under this category. While many states, including California, have laws prohibiting peremptory challenges based on sexual orientation, the federal issue has yet to be definitely decided.

The case involves an antitrust dispute between two pharmaceutical companies.  SmithKline Beecham Corp. claims that Abbott Laboratories unfairly priced its HIV medication, Norvir. During jury selection, an attorney for Abbott Laboratories used a peremptory challenge to remove a juror. The other side objected, arguing that the juror “is or appears to be, could be, homosexual.” The issue was relevant, the lawyer explained, because “the litigation involves AIDS medications” and “the incidence of AIDS in the homosexual community is well known, particularly gay men.”

The Ninth Circuit must now determine whether the attorney raised a valid Batson challenge. In an amicus brief, Lambda Legal and 11 other public interest groups argue that peremptory challenges based on sexual orientation violate the constitutional guarantee of equal protection. They further argue that allowing peremptory strikes based on a prospective juror’s sexual orientation would “serve only to perpetuate discrimination against lesbians and gay men.”

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The Guccione Collection LLC (TGC) filed an adversary proceeding in the Chapter 11 bankruptcy of PMGI Holdings Inc., the parent company for the adult entertainment empire carrying the name “Penthouse,” seeking declaratory relief and unspecified damages related to intellectual property (In Re: PMGI Holdings Inc., No. 13-12404, Chapter 11, D. Del. Bkcy.).

PMGI filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the District of Delaware on Sept. 17.

Guccione Assets 

TGC is a group dedicated to the life of Bob Guccione, the deceased former publisher and owner of Penthouse Magazine. TGC has purchased various assets formerly belonging to Guccione, and it offers those assets for sale through a website.

Friend Finder Networks Inc. (FFN), through its subsidiary General Media Communications Inc. (GMC), claims to have purchased certain assets and property rights belonging to Penthouse, TGC argues.

According to TGC’s complaint, FFN and GMC have alleged that TGC infringes on their intellectual property rights. Moreover, TGC says FFN and GMC have issued a “takedown notice,” pursuant to the Digital Millennium Copyright Act (DMCA), 17 U.S. Code Section 512.

17 U.S. Code Section 512

TGC maintains, however, that the assets in question belonged to Guccione privately and never belonged to Penthouse. Therefore, TGC says that even if FFN and GMC purchased the assets of Penthouse, FFN and GMC cannot demonstrate that they own any intellectual property rights covering the assets owned by TGC.

Furthermore, even if FFN and GMC could show that they own the intellectual property rights in question, TGC says its use of those rights “falls squarely within the doctrine of fair use.”

In February 2012, Jeremy Frommer, one of the principals of TGC, purchased at auction the contents of a storage facility in New Jersey that contained Guccione’s photography, artwork, films, magazines and documents.

Auction

Frommer located other items as well and made them available for purchase through TGC’s website.

When PMGI filed for bankruptcy on Sept. 17, 2013, Frommer expressed an interest in purchasing Penthouse. FFN and GMC then sent a cease and desist letter to TGC and sent the “takedown notice.”

TGC argues that FFN and GMC intentionally misrepresented that TGC was infringing valid copyrights and trademarks, which resulted in TGC’s hosting company taking down the website. Consequently, TGC says it has been damaged by the actions of FFN and GMC.

TGC is represented by Christopher P. Simon and David G. Holmes of Cross & Simon in Wilmington and Stuart I. Friedman, Andrew A. Wittenstein, Paul S. Grossman and Claire L. Chau of Friedman & Wittenstein in New York. PMGI is represented by Dennis A. Meloro of Greenberg Traurig in Wilmington and Nancy A. Mitchell and Matthew L. Hinker of the firm’s office in New York.

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A federal judge in Georgia on Sept. 20 awarded summary judgment to Wells Fargo Bank N.A. and the Federal Home Loan Mortgage Corp. (Freddie Mac) after finding that the lender never promised a couple that it would suspend foreclosure proceedings while their loan modification application was being considered (Marla Gould Holcomb, et al. v. Wells Fargo Bank N.A., et al., No. 12-CV-00111, S.D. Ga.; 2013 U.S. Dist. LEXIS 135182).

U.S. Judge William T. Moore Jr. 

of the Southern District of Georgia rejected Marla and Henry Holcomb’s claim for promissory estoppel and overruled the couple’s argument that Wells Fargo agreed to depart from the terms of the mortgage loan when deciding whether to offer them a modification.

“The mere consideration by Defendant WFB [Wells Fargo Bank] of possibly departing from the terms of the original contract by modifying Mrs. Holcomb’s mortgage does not mean that they actually agreed to any departure,” Judge Moore explained. “Because there was no mutual departure from the terms of the original mortgage, Defendants are entitled to summary judgment on this claim.”

Instructed To Default

The Holcombs claim that they were able to make their monthly mortgage payments but wanted to modify the terms of the loan. According to the couple, a representative from Wells Fargo told them that to be considered for a loan modification, they had to default on the loan. Based on this representation, the couple did not make their payments for May, June and July 2011. On July 13, 2011, the lender informed the Holcombs that their loan file was being transferred to the law firm of McCalla Raymer with instructions to begin foreclosure proceedings.

In a letter dated Nov. 18, 2011, the firm told the couple that foreclosure proceedings had begun and that their home would be sold in January 2012. The firm also provided the Holcombs with the notices required by Georgia law. The couple contacted Wells Fargo about the letter, but were told to disregard it because their loan modification request was pending. The lender informed the plaintiffs that the foreclosure sale would not happen if their request was approved.

On Dec. 30, 2011, the Holcombs were informed that they would not be provided with a loan modification. On Jan. 11, 2012, McCalla Raymer sent the plaintiffs a letter telling them that Freddie Mac had purchased their home on Jan. 3.

The Holcombs filed suit in the Chatham County Superior Court, seeking compensatory and punitive damages based on claims for wrongful foreclosure, promissory estoppel and mental distress. Wells Fargo removed the suit and later moved for summary judgment, arguing that the couple failed to meet the standard for wrongful foreclosure under Georgia law and that promissory estoppel does not apply in this case. The lender also asserted that it did not mutually depart from the terms of the original mortgage agreement by agreeing to suspend foreclosure activities while the Holcombs’ request for a loan modification was pending.

Clearly Informed

The Holcombs countered that they never would have defaulted on the loan if Wells Fargo had not told them to do so to be considered for a loan modification and that the lender represented that foreclosure proceedings would be suspended while the loan modification application was being considered. The plaintiffs also argued that Wells Fargo never provided notice of the foreclosure or provided them with an opportunity to cure the default on the loan.

Judge Moore found that the documents provided by Wells Fargo to the Holcombs clearly stated that foreclosure proceedings would continue unless the plaintiffs’ loan modification was approved. As a result, the judge found that the plaintiffs’ promissory estoppel claim failed. In addition, the judge found that Wells Fargo did not agree to depart from the terms of the original mortgage agreement while the Holcombs’ loan modification request was pending.

“In this case, Plaintiffs appear to argue that Mrs. Holcomb’s request for a loan modification was somehow a mutual departure that required WFB to provide notice of its intent to return to the original contract and foreclose under the terms of the security deed,” Judge Moore concluded. “The problem with Plaintiffs’ theory, however, is that all evidence in the record is to the contrary.”

The Holcombs are represented by Stanley Earl Harris Jr. of Duffy & Feemster in Savannah. Dylan W. Howard of Baker Donelson Bearman Caldwell & Berkowitz in Atlanta is counsel for the defendants.

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Bankrupt Residential Capital LLC (ResCap) on Sept. 19 filed a brief in the U.S. Bankruptcy Court for the Southern District of New York objecting to a $ 7.5 million claim filed against its estate by the West Virginia Investment Management Board (WVIMB) (In Re: Residential Capital LLC, No. 12-12020, Chapter 11, S.D. N.Y. Bkcy.).

ResCap filed for Chapter 11 bankruptcy on May 14, 2012.

Fraud Alleged

The WVIMB filed a proof of claim for $ 7.5 million against ResCap’s estate, contending that ResCap was guilty of fraud and negligent misrepresentation in its business dealings with WVIMB.

ResCap maintains that WVIMB cannot prove any material misstatement and that even if it could, “any purported misstatement was immaterial.” Moreover, WVIMB cannot show that it reasonably relied on any alleged misstatement, ResCap adds.

In 2007, WVIMB’s financial adviser responded to the weakening housing market by pushing its clients to “attempt to achieve above-market returns simply by making the ‘macro’ bet that calamity does not occur,” ResCap contends.

Risk Made ‘Knowingly’

WVIMB made that bet and bought millions of dollars in residential mortgage-backed securities (RMBS) from ResCap. “Calamity occurred”, ResCap says, because the housing market worsened, which is the very thing WVIMB had bet against. ResCap says that WVIMB sued, trying to recover “severe losses.”

ResCap argues that the law does not permit WVIMB to sue ResCap because as an investor, WVIMB knowingly made a “risky, contrarian ‘bet,’” and now it seeks to shift its losses through a fraud lawsuit that should be rejected.

WVIMB cannot prove that ResCap made any misstatement with fraudulent intent, ResCap says. Furthermore, ResCap contends that it warned WVIMB that its underwriting reviews of the RMBS at issue “generally [would] not be conducted with respect to any individual mortgage pool related to a series of certificates.”

Thus, even if the mortgages differed materially from the descriptions in the offering materials, ResCap would not have known that at the time the statements were made, ResCap maintains.

ResCap is represented by Gary S. Lee, Joel C. Haims and James J. Beha II of Morrison & Foerster in New York.

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