Beginning October 1, people will be able to shop for the expanded insurance coverage made possible by ACA. As part of its publicity effort, the Department of Health and Human Services is seeking to partner with the NFL and other sports leagues in publicity efforts. This does not sit well with GOP Sens. Mitch McConnell and John Cornyn, who sent this letter to Commissioner Roger Goodell.
The letter chastises the league for risking its "inclusive and apolitical" brand, expressing surprise that a pro sports league would take "public sides in such a highly polarized public debate." But I would reject the suggestion that the NFL, or any other sports league, is or ever has been apolitical. Putting aside the way leagues regularly engage in politics for their own direct benefit--antitrust, labor law, stadium funding. Leagues and teams regularly get involved in public issues--gay rights, women's rights, racial equality, war and the military. At least some of these are at least as contentious as ACA. In fact, as the letter acknowledges, the Boston Red Sox in 2007 participated in efforts to encourage enrollment in Massachusetts' program. The reason for this being different, they argue, is that ACA passed on a party-line vote using "legislative gimmicks" and "ridiculed political favors." Stated differently, ACA passed through the ordinary legislative process, but the process worked to our disadvantage. Thus, the law is illegitimate, so you, as an apolitical entity, should stay out of it.
There also is a hint of the paranoid. They express concern for "the Obama Administration's record of using the threat of policy retaliation to solicit support for its policies or to silence its critics" and helpfully tell the NFL to come to them if they are feeling threatened or coerced so the Senate GOP can protect them from the big, bad President. Of course, in emphasizing how unheard-of and wrong-headed the NFL's involvement would be , the letter could be read as its own threat designed to solicit support for the McConnell/Cornyn side in this debate. It actually is the classic bully trick--you better come to me for protection from that other who is threatening you.
Sunday, June 30, 2013
Tame on Steven Adams
Jack Tame is TVNZ's correspondent in the USA, and also writes a column in the Herald. He attended the NBA Draft in Brooklyn on Friday and reports thus on Kiwi hoops star-to-be Steven Adams:
Adams seems to be a bit of a hard case. What you see is what you get, and unlike the American college players who have spent years being told how good they are and who believe it, he is one of the most unaffected young sportsmen we've seen for some time.
Adams is going to be mixing in some pretty select company in the next few years. But he is there because team bosses, most especially the head of the OKC outfit loved his attitude and personality.
Here's hoping that the trappings of fame and fortune don't change Steven Adams, and that as he learns his trade at the highest level, that his unique Kiwi-as personality doesn't get squeezed out of him. He is as refreshing as he is imposing in physique.
Some overly thorough sports hack in some part of the United States apparently reckons that Steven Adams' hands are the second-biggest of any NBA prospect ever.
I can't personally clarify if that's of any rookie ever, or any basketball player ever, or whether it was measured on the thumb-to-pinky or middle-to-palm ratio. I can only assure you I have little intention of confirming it myself, but that greeting the man himself is like handshaking a front-loading washing machine.
Fortunately for those of us with humbler extremities, Steven Adams favours the knuckle-saving "bro" style handshake. And when he walked off the NBA stage to a waiting posse of NBA suits, I slapped that giant hand like the belly of a fish.
"OKC! Meeeean bro!" he grinned as he ducked under the door.
Never have you seen anyone so enthusiastic about Oklahoma.
"You know they have tornadoes, eh?" I asked.
"You know that the city's claim to fame is as 'The Birthplace of the Shopping Trolley'?"
"Bro, the chicks in OKC are meeeean," he whispered. "And the team has it's own chef."
To them, he's Kiwi-as. Fresh. Unsullied by expectation or the glitzy behemoth that is US professional sport.
In reality he could be any other 19-year old Wellington kid.
The posse pushed in. There were interviews to do, managers to meet.
I slapped that fish belly hand and hoped he doesn't lose his grip.
Adams seems to be a bit of a hard case. What you see is what you get, and unlike the American college players who have spent years being told how good they are and who believe it, he is one of the most unaffected young sportsmen we've seen for some time.
Adams is going to be mixing in some pretty select company in the next few years. But he is there because team bosses, most especially the head of the OKC outfit loved his attitude and personality.
Here's hoping that the trappings of fame and fortune don't change Steven Adams, and that as he learns his trade at the highest level, that his unique Kiwi-as personality doesn't get squeezed out of him. He is as refreshing as he is imposing in physique.
A messy week
We've got a few things going on this week, so although we will do our best to blog when we can, things may be a little all over the place.
We have managed to pre-load some content, and we are of course doing our detective work on David Shearer's behalf. And if anything else happens, we'll do our best to cover it.
Take care, and be comforted by the fact we were told this morning that as well as the year being almost halfway through (a milestone we will reach at mid-day tomorrow), there are 176 days until Christmas!
We have managed to pre-load some content, and we are of course doing our detective work on David Shearer's behalf. And if anything else happens, we'll do our best to cover it.
Take care, and be comforted by the fact we were told this morning that as well as the year being almost halfway through (a milestone we will reach at mid-day tomorrow), there are 176 days until Christmas!
Whodunnit? Part 2/34
We're helping Labour leader David Shearer discover who's been telling tales out of school to 3News journalist Patrick Gower. To do that, we're working our way sequentially through the Labour caucus.
Grant Robertson is David Shearer's loyal deputy leader; that's the theory anyway. But it is well known that Grant Robertson himself has ambitions to his boss' job.
Jim Bolger (Don McKinnon) and Helen Clark (Michael Cullen) wrote the manual on appointing a deputy, and John Key has followed suit. Having a deputy who has designs on your desk is not a clever strategy.
Grant Robertson would be an obvious suspect. The leader's office is stacked with Robertson's friends and appointees. The MP for Wellington Central is ambitious. But we reckon that he is perhaps TOO obvious a suspect.
We wouldn't rule him out as being involved (just like Peter Dunne), but as far as being the actual mole himself, we'd rate Mr Robertson as a 6/10; we reckon there are stronger prospects elsewhere in the Labour caucus. And we reserve the right to revisit Mr Robertson further down the track.
Tomorrow we'll move on to the #3 ranked Labour MP, David Parker. Do check us out!
Grant Robertson is David Shearer's loyal deputy leader; that's the theory anyway. But it is well known that Grant Robertson himself has ambitions to his boss' job.
Jim Bolger (Don McKinnon) and Helen Clark (Michael Cullen) wrote the manual on appointing a deputy, and John Key has followed suit. Having a deputy who has designs on your desk is not a clever strategy.
Grant Robertson would be an obvious suspect. The leader's office is stacked with Robertson's friends and appointees. The MP for Wellington Central is ambitious. But we reckon that he is perhaps TOO obvious a suspect.
We wouldn't rule him out as being involved (just like Peter Dunne), but as far as being the actual mole himself, we'd rate Mr Robertson as a 6/10; we reckon there are stronger prospects elsewhere in the Labour caucus. And we reserve the right to revisit Mr Robertson further down the track.
Tomorrow we'll move on to the #3 ranked Labour MP, David Parker. Do check us out!
Sevens Heaven
Both the New Zealand Men's and Women's Sevens teams are world champions. The double success has come in Moscow, where crowd numbers were somewhat underwhelming. The wags have suggested that those who did turn up were dressed up as empty stadium seats!
Never mind that though. In dreadful conditions, the women's team knocked over Canada 29-12 to win their world cup. And the men thrashed England 33-nil to win the Melrose Cup for the first time in twelve years.
Both sides turned on superb performances in difficult conditions; stifling heat during the day, then torrential rain later. They are deserved world champions, and their respective celebrations are the product of months of hard work.
Photo of the Day - 1 July 2013
Has there ever been a better drawing of Ohariu MP and leader-without-a-party Peter Dunne? Check this out:
That's great work by Sharon Murdoch. We reckon that even Mr Dunne will be having a wee twitter at his own expense!
That's great work by Sharon Murdoch. We reckon that even Mr Dunne will be having a wee twitter at his own expense!
The juggernaut continues
The Vodafone Warriors clocked up the perfect end to a perfect June yesterday, recording the team's fifth straight win in the NRL. The Warriors fought hard to beat Brisbane 18-16 at Mt Smart, giving them a Broncos double for 2013. Stuff reports:
Yesterday's win wasn't pretty, but a win is a win, and it's games like this that the Warriors were losing last season and in the early part of this year. They have suddenly found a way to win tight games.
More importantly, the side has gone from the foot of the NRL table to now being outside the top eight only on points differential. And amazingly, they are only two competition points behind the fifth-placed Gold Coast Titans.
Well done to Matt Elliott and his side for turning around a disaster of a season, and for having a perfect month. The table-topping Rabbitohs are next, and you wouldn't bet against the Warriors extending their run.
The Warriors have recorded their fifth consecutive win, beating the Broncos 18-16 at Mt Smart Stadium and once again their victory had a dramatic finish.
For the second consecutive home game Konrad Hurrell was the man to save the day for the Warriors by scoring the match winning try, but unlike his dance through the Sea Eagles defence a few weeks ago, this time it was a long distance effort.
Trailing 16-12 to the Broncos with nine minutes to go Hurrell intercepted a pass from Scott Prince and raced 93 metres for the try and Shaun Johnson's conversion put the Warriors in front.
However, there was to be one more piece of drama in the game when the Broncos were awarded a penalty from 45m out in the final minute, which would have taken the game into golden point extra time, but much to the relief of the 15,515 spectators in attendance Corey Parker put the kick wide.
Yesterday's win wasn't pretty, but a win is a win, and it's games like this that the Warriors were losing last season and in the early part of this year. They have suddenly found a way to win tight games.
More importantly, the side has gone from the foot of the NRL table to now being outside the top eight only on points differential. And amazingly, they are only two competition points behind the fifth-placed Gold Coast Titans.
Well done to Matt Elliott and his side for turning around a disaster of a season, and for having a perfect month. The table-topping Rabbitohs are next, and you wouldn't bet against the Warriors extending their run.
Find The "WE"
Social media posts show how people push others to opposing sides or if they seek ways to unite. People are often more alike than different, but many enjoy labels and going to battle. It is often not even noticed.
A professional friend who I respect was recently described as a "nasty divider". I was surprised, as the person in question is smart, dedicated and passionate, but others view her as one who has to always be "right", and make others feel "wrong".
I did not understand, until I looked closely at her Facebook page. Everything she posts is "Us vs. Them". While not necessarily "nasty", she makes villains out of people with other points of view.
This is not only about politics (but if you look at most political posts, this is extra evident). The division occurs in connection with all types of topics...some of which do not even need to have opposing sides. I am guilty of this (we all are to some extent), and am working to lead with "we" much more often in all I do.
How about your social media stream? What do your posts say about you? Uniter or Divider?
Have A Great Day
thom singer
A Murder in Massachusetts: Aaron Hernandez
Hope you can pick up a copy of this week's issue and out the article.
Saturday, June 29, 2013
Photos of the Day - 30 June 2013
The cordon around Christchurch's Red Zone has officially been lifted; Stuff reports:
The last remaining members of the New Zealand Defence Force were farewelled in Christchurch today.
Dozens of onlookers joined Prime Minister John Key as the soldiers paraded through the city centre.
Their job has ranged from security, to gatekeepers, to tourism advisers, sometimes even consolation for distraught residents.
The parade coincided with the official lifting of the cordon.
Over the weekend hundreds of people have walked through the area that was shut off after the February 2011 earthquake.
Building and demolition sites and traffic management for infrastructure roadworks mean some areas of the central business district will still be closed off.
This is another important step in Christchurch's return to normality. The sight of NZDF personnel guarding the Red Zone immediately after the 2011 earthquake was rather surreal, but as time passed it all seemed perfectly normal. Now however, there is not much that needs guarding.
And we spotted this on Facebook yesterday:
Kia kaha Christchurch. As every day passes the new Christchurch takes a little more shape, and it going to be a wonderful city in years to come. We're hoping to get down there in the next couple of weeks to see it for ourselves.
Whodunnit? Part 1/34...
David Shearer is on a mission; the Otago Daily Times reports:
Regular readers will know that we are helpful bloggers. So we have made it our mission to help Mr Shearer find out who the culprit is. Over the next 34 days, we're going to work our way through Labour's caucus, and see if we can find the mole for Mr Shearer.
And there's only one place to start, and that's at the top; with David Shearer himself! Now we don't think that Mr Shearer would have let slip to Patrick Gower that he was on notice, when clearly he didn't know he was. Then again, Gower said that the mole was a Shearer loyalist, and we guess that loyalists don't come much more loyal than the leader himself.
But by the same token, we still can't understand how Mr Shearer remembered his Chase Manhattan account when it came time to do his tax, but not his register of pecuniary interests. So on that basis, Mr Shearer could well be a suspect.
On probability, we'd rate David Shearer as about a 4/10; do you agree?
Stay tuned; tomorrow we will look at Labour's deputy leader, Grant Robertson
Labour leader David Shearer has been forced to deny allegations of division amongst his party caucus.
Mr Shearer, who appeared TVNZ's Q+A this morning following Labour's successful Ikaroa-Rawhiti by-election result, was quizzed about the allegations and reports of a possible party leadership challenge.
"I'd like to know who the MP is," Mr Shearer said in reference to reports some MPs had told media their could be a challenge to his leadership within two months due to poor polling results.
Regular readers will know that we are helpful bloggers. So we have made it our mission to help Mr Shearer find out who the culprit is. Over the next 34 days, we're going to work our way through Labour's caucus, and see if we can find the mole for Mr Shearer.
And there's only one place to start, and that's at the top; with David Shearer himself! Now we don't think that Mr Shearer would have let slip to Patrick Gower that he was on notice, when clearly he didn't know he was. Then again, Gower said that the mole was a Shearer loyalist, and we guess that loyalists don't come much more loyal than the leader himself.
But by the same token, we still can't understand how Mr Shearer remembered his Chase Manhattan account when it came time to do his tax, but not his register of pecuniary interests. So on that basis, Mr Shearer could well be a suspect.
On probability, we'd rate David Shearer as about a 4/10; do you agree?
Stay tuned; tomorrow we will look at Labour's deputy leader, Grant Robertson
Ladies beware
This Facebook page may be being administered from outside the wire at Paremoremo, but we would urge caution to any women who see it:
Today's Herald on Sunday carried a story about the page. It notes that some of New Zealand's worst criminals are touting for female penfriends via the page.
We're not going to link to either the page or the Herald story. But any woman considering starting a penpal relationship with some of these thugs should be very, very careful indeed; the crimes that they have committed are some of New Zealand's most horrific.
The Courts in New Zealand seem to be forever clearing up the mess left when women invite the wrong men into their lives. or those of their children. Whilst the criminals in this case may be locked up, they have plenty of associates on the outside who would be only too willing to pay some of these women a visit. And that is a recipe for disaster.
Today's Herald on Sunday carried a story about the page. It notes that some of New Zealand's worst criminals are touting for female penfriends via the page.
We're not going to link to either the page or the Herald story. But any woman considering starting a penpal relationship with some of these thugs should be very, very careful indeed; the crimes that they have committed are some of New Zealand's most horrific.
The Courts in New Zealand seem to be forever clearing up the mess left when women invite the wrong men into their lives. or those of their children. Whilst the criminals in this case may be locked up, they have plenty of associates on the outside who would be only too willing to pay some of these women a visit. And that is a recipe for disaster.
Ma'a sees red
It wasn't a stellar night for Ma'a Nonu last night at Forsyth Barr Stadium in Dunedin. He'd been on the field a mere 13 seconds when he had a kick charged down, and the Crusaders almost scored. Perhaps he should have taken that as a sign.
Just a few minutes later, his night was over; red-carded by referee Steve Walsh:
Just a few minutes later, his night was over; red-carded by referee Steve Walsh:
The IRB leaves referees no latitude on tip-tackles; lift a player's legs above the horizontal and drop or drive him into the turf, and the referee has no alternative but to show a red card. And that is exactly what happened to Nonu last night. At full speed it looked bad, and on replay even worse; he was gone. As the Mastercard advert says, it was "Nonu. Nonu, Nonu; boom!"
Ma'a Nonu is an enigma. He has had an abysmal Super 15 this season (which has probably ended now, mercifully so), but the moment he pulled on the All Black jersey, he was transformed. It really is inexplicable.
There was also some rugby played last night of course, and a last-gasp, length-of-the-field try by Telusa Veainu gave the Crusaders a four-try bonus point.The Crusaders are running into form when it matters, and with Richie McCaw back in training, will be a force at the business end of the competition.
UPDATE: Ma'a Nonu is indeed in some strife, with a date with the judiciary over TWO incidents in a forgettable night last night.
There was also some rugby played last night of course, and a last-gasp, length-of-the-field try by Telusa Veainu gave the Crusaders a four-try bonus point.The Crusaders are running into form when it matters, and with Richie McCaw back in training, will be a force at the business end of the competition.
UPDATE: Ma'a Nonu is indeed in some strife, with a date with the judiciary over TWO incidents in a forgettable night last night.
Quote of the Day - 30 June 2013
John Armstrong notes that Labour has again been out-foxed by Prime Minister John Key ( with our emphasis added):
Labour "wallowing in the Slough of Despond"; it's the second time that Armstrong has pulled that line out, and it looks as though it might stick. And his comment about "tactical ineptitude" is right on the money.
Is Trevor Mallard still Labour's strategic genius?
With yesterday's confirmation of a tunnel as the second harbour crossing plus sundry motorway extensions and developments, Key has mapped out National's vision for Auckland transport and, perhaps more importantly, laid out the stages by which that vision will be achieved.
In one swoop, he has taken the steam out of what, after housing affordability, is the thorniest issue in the country's biggest city - traffic congestion - and one on which, according to opinion polls, National's management has less than impressed the public.
In particular, Key has now marginalised Labour and the Greens in the one aspect of public policy where those parties thought they safely had it all over National - public transport.
They have been left querying the 2020 start-date for the City Rail Link project, saying it should be much earlier.
Key, however, argues that the later date will see the work completed when patronage will be high enough to justify its construction. But he has left room to bring it forward if it becomes clear that Auckland's CBD employment and rail patronage growth hit thresholds faster than current rates suggest.
Apart from shoring up National's support in Auckland, the go-ahead is intended to remind the rest of New Zealand that National - unlike its opponents - looks at the big picture and gets things done whereas they are consumed by the relatively trivial, such as the fate of Peter Dunne and his parliamentary allowances.
For Labour - already wallowing in the Slough of Despond in the wake of its poor showing in the latest Herald-DigiPoll Survey - the tick for the City Rail Link was another reminder of how difficult it is to second-guess Key.
The irony is that Labour had a head start. The whole transport package was due to be released yesterday. However, Labour's Te Atatu MP, Phil Twyford, got wind of National's switch in thinking on the City Rail Link and tipped off some media organisations. In hindsight, he and David Shearer might have been better advised to have called a press conference and challenged Key to confirm National's sudden conversion to the wish-list of Auckland Mayor Len Brown.
Shearer would have looked proactive rather than reactive. He would have looked as if he had got one over Key.
But missed opportunities and tactical ineptitude are currently bedevilling Labour.
Labour "wallowing in the Slough of Despond"; it's the second time that Armstrong has pulled that line out, and it looks as though it might stick. And his comment about "tactical ineptitude" is right on the money.
Is Trevor Mallard still Labour's strategic genius?
Tweet of the Day - 30 June 2013
Clare Curran retweeted this last night:
Now Ms Curran is supposedly Labour's communications expert. So you might expect that she could distinguish between the REAL David Shearer Twitter account - @DavidShearerMP - and a fake David Shearer account which the one above is; check this out:
Mind you; the fake David Shearer has just 72 followers, so we can understand why Ms Curran might be confused. And if Patrick Gower is correct, the REAL David Shearer might soon be joining Meka Whaitiri on Labour's back bench!
Now Ms Curran is supposedly Labour's communications expert. So you might expect that she could distinguish between the REAL David Shearer Twitter account - @DavidShearerMP - and a fake David Shearer account which the one above is; check this out:
Mind you; the fake David Shearer has just 72 followers, so we can understand why Ms Curran might be confused. And if Patrick Gower is correct, the REAL David Shearer might soon be joining Meka Whaitiri on Labour's back bench!
Congratulations Meka
Meka Whaitiri is New Zealand's newest MP. Ms Whaitiri won yesterday's Ikaroa-Rawhiti by-election with a majority of 1761 votes over the Mana Party's candidate Te Hamua Nikora. The Maori Party and Green Party candidates filled third and fourth places, as predicted.
But Meka Whaitiri's majority will be of concern to Labour. She won 41.5% or the vote, compared to Parekura Horomia having won more than 60% in 2011. And her share of the vote is significantly less that the more-than 50% of Ikaroa-Rawhiti electors who party-voted for Labour in 2011.
This result most certainly can not be taken as a ringing endorsement of David Shearer's leadership. Labour should have won by a far wider margin given the vice-like grip which Mr Horomia held over Ikaroa-Rawhiti.
But it was Meka Whaitiri's night, and we congratulate her sincerely. She will bring a solid background of service to Maori to Parliament.
But Meka Whaitiri's majority will be of concern to Labour. She won 41.5% or the vote, compared to Parekura Horomia having won more than 60% in 2011. And her share of the vote is significantly less that the more-than 50% of Ikaroa-Rawhiti electors who party-voted for Labour in 2011.
This result most certainly can not be taken as a ringing endorsement of David Shearer's leadership. Labour should have won by a far wider margin given the vice-like grip which Mr Horomia held over Ikaroa-Rawhiti.
But it was Meka Whaitiri's night, and we congratulate her sincerely. She will bring a solid background of service to Maori to Parliament.
MMA in Indian Country
An interesting piece on MMA in Indian Country (I had not realized the sport somewhat got its start there) and regulatory conflicts between states and sovereign Indian nations. My colleague Alex Pearl was a source for the story.
The Ends Do Not Justify the Means in MLB's Current PED Investigation
I am excited to have been invited to become a contributor to Sports Law Blog, and this is my first post, where I will look at topics that involve the intersection of legal ethics and professional responsibility with sports law. For this post, what follows are my opinions about and understanding of MLB’s current PED Investigation.
MLB and MLBPA have a Collective Bargaining Agreement, and they have a Joint Drug Prevention and Treatment Program that in part “provide[s] for, in keeping with the overall purposes of the Program, an orderly, systematic, and cooperative resolution of any disputes that may arise concerning the existence, interpretation, or application of this Program. Except as otherwise provided herein, any dispute arising under the Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” The CBA and the Joint Program are neither MLB’s nor MLBPA’s: They are their mutually negotiated and agreed to contracts governed by federal labor law.
Rather than follow the Joint Program, MLB filed a straw-man lawsuit in Florida state court for what appears to be the sole purpose of obtaining discovery that it could not otherwise have obtained, which is per se an improper purpose, I believe. We can surmise that was the purpose, because in exchange for the information it wanted, MLB apparently settled with the primary defendant and indemnified him against claims by the players. Clearly, all MLB wanted was information, and its claim for tortious interference was simply a front. MLB’s billion dollar weight was thrown against defendants without apparent financial means, who would have been expected to cave and did. To date, while apparently leaking information to the media as to whom is going to be suspended or who is under suspicion, MLB has not followed any part of the Joint Program, or at least none that has been reported. Certainly, the Joint Program doesn’t provide for discovery lawsuits against third-parties, and, instead, it specifically requires that the “[Joint] Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” If there is reasonable cause to believe that a player has violated the Joint Program, notice to and testing of the player is a required prerequisite, yet that has assumedly not occurred, because MLB has no such “reasonable cause,” which is presumably why it went on its fishing hunt in the first place. If MLB thought it needed additional avenues for discovery, it was free to negotiate that with MLBPA, yet it did not do so.
With this apparently extortionate power that comes with the Goliath versus David lawsuit, and with no one, not even the players or the Union, taking action to stop them, MLB may have interfered with the players’ right to keep confidential their medical information under both federal and state law, and the Florida state court has just ordered that such medical records be returned immediately to one of the deponents in the case. Moreover, according to news reports, MLB’s attorneys may have violated Model Rule 3.4 through their client’s payment for records and testimony, not to mention their client indemnifying the primary defendant, which should subject that ill-gotten information or testimony to evidentiary exclusion, and which may expose MLB’s lawyers to grievances before the attorney regulatory agencies of the applicable states. On the sidelines, MLB, either directly or through the teams, appears to be coercing the minor league players to roll over. They are not even members of the Union, unless they’re on the 40-Man Roster, so imagine how “cooperative” their cooperation really is, when they are being compelled to speak under what one may imagine is at least an implied threat of suspension or termination.
MLB filed its lawsuit for tortious interference with a collective bargaining agreement, when there is no such tort—they just made it up. The players’ contracts are with the teams, and if one wanted to make a tortious interference claim for those contracts, the individual teams would be the appropriate plaintiffs. Labor law is the exclusive province of the federal courts, yet MLB filed in state court, and to make dumb dumber, the Florida state court has noted that it probably lacks subject matter jurisdiction, yet it is waiting for one of the defendants (versus third-party deponents) to make a motion to dismiss on the basis of standing, when no one has standing, if the court lacks subject matter jurisdiction (in which case, the court is supposed to dismiss the case on its own).
What is clear in my opinion is that MLB’s foray into Florida state court is frivolous under Civil Rule 11 and other related sanctions tools. I am published on and edited the leading treatise on this topic. MLB seems to have filed a bogus lawsuit in the wrong jurisdiction against people who have no ability to fight back, it seems to have illegally or unethically obtained confidential information and testimony from them, it seems to have used this material to smear odd-numerous professional baseball players without ever making formal accusations against them, it seems to have leaked to the Press that it has already prejudged these players, whose rights to respond under the Joint Program have been rendered meaningless, and so on. If I was designing a frivolous case example for a law school text book, this would fit the bill, where there seems to be no good-faith basis in law or fact for the lawsuit, and where the lawsuit seems to have been filed for an improper purpose.
If the NCAA was behaving this way, we’d all expect its poor judgment, but MLB? What are they thinking? So if MLB is trying to litigate a bogus dispute in the wrong place, why are they doing that? You may recall that the NCAA wrongfully got information from a civil suit in Florida, too. How about MLB? Is it trying to secure and securing discovery by these wrongful means to use against the players? And where does MLB plan on using this information against players? In the context of its labor agreements before a labor arbitrator!
Sooner or later, either the players or the Union are going to file a federal court action to declare what is obvious, which is that MLB is constrained by the agreements it negotiated, that it cannot violate HIPPA and/or various state laws regarding medical confidentiality and privacy, that it cannot file frivolous lawsuits, and that it cannot taint evidence by unethically paying for it, if not also coercing or extorting it, and then still expect to be able to use it. The same result will happen if any of the defendants remove the current lawsuit to federal court, or if the players or the Union intervene and do the same.
The players who have already been smeared should have already intervened, as they have nothing to lose now, the Union should have intervened by now to protect the integrity of the process it negotiated and agreed to, and both the players and the Union should be seeking an injunction against MLB from using any of its ill-gotten information or any fruits from the same. There is no principled argument that can be made to allow MLB to use unethically or illegally obtained so-called evidence. And the larger public policy issue is that collective bargaining agreements between very sophisticated parties must be followed rather than eluded, especially when they are being eluded for apparently improper purposes. Certainly, the players and the Union should be seeking an injunction to compel compliance with the CBA and the Joint Program.
One of the things that trial lawyers think about in regards to investigating facts is whether we can get relevant information, but also whether we can do so ethically and pursuant to applicable law, and if so, whether we can use it, i.e., is it admissible or can we use it to gain admissible evidence? The NCAA forgot this in regards to the University of Miami, and MLB has forgotten this in regards to its current PED investigation.
MLB and MLBPA have a Collective Bargaining Agreement, and they have a Joint Drug Prevention and Treatment Program that in part “provide[s] for, in keeping with the overall purposes of the Program, an orderly, systematic, and cooperative resolution of any disputes that may arise concerning the existence, interpretation, or application of this Program. Except as otherwise provided herein, any dispute arising under the Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” The CBA and the Joint Program are neither MLB’s nor MLBPA’s: They are their mutually negotiated and agreed to contracts governed by federal labor law.
Rather than follow the Joint Program, MLB filed a straw-man lawsuit in Florida state court for what appears to be the sole purpose of obtaining discovery that it could not otherwise have obtained, which is per se an improper purpose, I believe. We can surmise that was the purpose, because in exchange for the information it wanted, MLB apparently settled with the primary defendant and indemnified him against claims by the players. Clearly, all MLB wanted was information, and its claim for tortious interference was simply a front. MLB’s billion dollar weight was thrown against defendants without apparent financial means, who would have been expected to cave and did. To date, while apparently leaking information to the media as to whom is going to be suspended or who is under suspicion, MLB has not followed any part of the Joint Program, or at least none that has been reported. Certainly, the Joint Program doesn’t provide for discovery lawsuits against third-parties, and, instead, it specifically requires that the “[Joint] Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” If there is reasonable cause to believe that a player has violated the Joint Program, notice to and testing of the player is a required prerequisite, yet that has assumedly not occurred, because MLB has no such “reasonable cause,” which is presumably why it went on its fishing hunt in the first place. If MLB thought it needed additional avenues for discovery, it was free to negotiate that with MLBPA, yet it did not do so.
With this apparently extortionate power that comes with the Goliath versus David lawsuit, and with no one, not even the players or the Union, taking action to stop them, MLB may have interfered with the players’ right to keep confidential their medical information under both federal and state law, and the Florida state court has just ordered that such medical records be returned immediately to one of the deponents in the case. Moreover, according to news reports, MLB’s attorneys may have violated Model Rule 3.4 through their client’s payment for records and testimony, not to mention their client indemnifying the primary defendant, which should subject that ill-gotten information or testimony to evidentiary exclusion, and which may expose MLB’s lawyers to grievances before the attorney regulatory agencies of the applicable states. On the sidelines, MLB, either directly or through the teams, appears to be coercing the minor league players to roll over. They are not even members of the Union, unless they’re on the 40-Man Roster, so imagine how “cooperative” their cooperation really is, when they are being compelled to speak under what one may imagine is at least an implied threat of suspension or termination.
MLB filed its lawsuit for tortious interference with a collective bargaining agreement, when there is no such tort—they just made it up. The players’ contracts are with the teams, and if one wanted to make a tortious interference claim for those contracts, the individual teams would be the appropriate plaintiffs. Labor law is the exclusive province of the federal courts, yet MLB filed in state court, and to make dumb dumber, the Florida state court has noted that it probably lacks subject matter jurisdiction, yet it is waiting for one of the defendants (versus third-party deponents) to make a motion to dismiss on the basis of standing, when no one has standing, if the court lacks subject matter jurisdiction (in which case, the court is supposed to dismiss the case on its own).
What is clear in my opinion is that MLB’s foray into Florida state court is frivolous under Civil Rule 11 and other related sanctions tools. I am published on and edited the leading treatise on this topic. MLB seems to have filed a bogus lawsuit in the wrong jurisdiction against people who have no ability to fight back, it seems to have illegally or unethically obtained confidential information and testimony from them, it seems to have used this material to smear odd-numerous professional baseball players without ever making formal accusations against them, it seems to have leaked to the Press that it has already prejudged these players, whose rights to respond under the Joint Program have been rendered meaningless, and so on. If I was designing a frivolous case example for a law school text book, this would fit the bill, where there seems to be no good-faith basis in law or fact for the lawsuit, and where the lawsuit seems to have been filed for an improper purpose.
If the NCAA was behaving this way, we’d all expect its poor judgment, but MLB? What are they thinking? So if MLB is trying to litigate a bogus dispute in the wrong place, why are they doing that? You may recall that the NCAA wrongfully got information from a civil suit in Florida, too. How about MLB? Is it trying to secure and securing discovery by these wrongful means to use against the players? And where does MLB plan on using this information against players? In the context of its labor agreements before a labor arbitrator!
Sooner or later, either the players or the Union are going to file a federal court action to declare what is obvious, which is that MLB is constrained by the agreements it negotiated, that it cannot violate HIPPA and/or various state laws regarding medical confidentiality and privacy, that it cannot file frivolous lawsuits, and that it cannot taint evidence by unethically paying for it, if not also coercing or extorting it, and then still expect to be able to use it. The same result will happen if any of the defendants remove the current lawsuit to federal court, or if the players or the Union intervene and do the same.
The players who have already been smeared should have already intervened, as they have nothing to lose now, the Union should have intervened by now to protect the integrity of the process it negotiated and agreed to, and both the players and the Union should be seeking an injunction against MLB from using any of its ill-gotten information or any fruits from the same. There is no principled argument that can be made to allow MLB to use unethically or illegally obtained so-called evidence. And the larger public policy issue is that collective bargaining agreements between very sophisticated parties must be followed rather than eluded, especially when they are being eluded for apparently improper purposes. Certainly, the players and the Union should be seeking an injunction to compel compliance with the CBA and the Joint Program.
Academics Stand Against Poverty: fundraising campaign
The new campaign Academics Stand Against Poverty (ASAP) is a global network for scholars using research, teaching, and advocacy to accelerate the end of poverty.
They are currently reaching the end of their first campaign, to raise $15,000 dollars to stop illicit financial flows.
Via email:
They are currently reaching the end of their first campaign, to raise $15,000 dollars to stop illicit financial flows.
Via email:
"One of the greatest problems facing developing economies is the amount of money lost in criminal activity, tax evasion and corruption. It is estimated that $ 1 trillion dollars is lost in this way. In order to bring poverty to an end, we need to stop such financial flows from happening and we need to do it now. Tax havens, financial transparency and regulation have become a prominent feature in global media, discussions and international relations. Indeed, they were one of the main topics at the recent G8 summit. It is for this reason that we believe now is the time to act and to sop illicit financial flows. ASAP intends to bring an end to this corruption by taking a team of world class scholars to the UN,where they will present a plan to close down tax havens and bring transparency to the global financial system. We aim to place this plan on the post-2015 agenda and ensure that the abolishment of tax havens is a goal which all countries strive to achieve. The only way this will become possible is to place this on the global agenda and for our world leaders to act on it once and for all. With only 2 days left to go, to raise $3000 we need your help. Without you, we can't take our scholars to the UN, we cannot present the UN with the resolution to this global financial problem and we cannot stop illicit financial flows. Without you, we will allow poverty to perpetuate."
Friday, June 28, 2013
Cool Things My Friends Do: Ken Harris Rides His Bike 3872 Miles To Raise Money for Parkinson's Research
Each Friday on this blog I enjoy highlighting some of the cool things my friends do in their personal and professional lives.
My friend Ken Harris is currently on a cross country 52-Day bike ride from San Francisco, CA to Portsmouth, NH. Oh, did I mention he is 70 years old? Yeah, I am lucky to run a 5K once a year, and Ken is peddling across the whole United States (3872 Miles) in less than 2 months.
This has been on his bucket list for many years. He is always on the go with some activity....He travels the world, skis, camps, hikes, and does all sorts of activities to keep very young at heart. When the opportunity came up to do this ride he decided to go for it. It has been great fun to follow his adventure on Facebook and on the blog of his fellow rider John Aylward.
Today was Day 27 and they are currently in Kansas.
Part of his journey is to raise money for the Davis Phinney Foundation for Parkinson's Disease. Both his mother and brother are afflicted with Parkinson's and this is a cause that matters to Ken's family. He has currently raised $4470.00, on a goal of $5000.00 (soooo close!! - jump over and make a small donation if you feel so inspired).
I look forward to hearing all about Ken's adventure when he gets back to Austin in August. In the meantime... Happy peddling.
Have A Great Day
thom singer
My friend Ken Harris is currently on a cross country 52-Day bike ride from San Francisco, CA to Portsmouth, NH. Oh, did I mention he is 70 years old? Yeah, I am lucky to run a 5K once a year, and Ken is peddling across the whole United States (3872 Miles) in less than 2 months.
This has been on his bucket list for many years. He is always on the go with some activity....He travels the world, skis, camps, hikes, and does all sorts of activities to keep very young at heart. When the opportunity came up to do this ride he decided to go for it. It has been great fun to follow his adventure on Facebook and on the blog of his fellow rider John Aylward.
Today was Day 27 and they are currently in Kansas.
Part of his journey is to raise money for the Davis Phinney Foundation for Parkinson's Disease. Both his mother and brother are afflicted with Parkinson's and this is a cause that matters to Ken's family. He has currently raised $4470.00, on a goal of $5000.00 (soooo close!! - jump over and make a small donation if you feel so inspired).
I look forward to hearing all about Ken's adventure when he gets back to Austin in August. In the meantime... Happy peddling.
Have A Great Day
thom singer
O'Sullivan on Key's Grand Plan
Fran O'Sullivan's opinion-piece in this morning's Herald is worth a read in its entirety. But this bit really stood out:
What John Key has announced in Christchurch and Auckland in successive days this week is incredibly clever politics. Those on the Left who deride Key as a political lightweight have been left with an entire omelette on their faces.
Key may not have spent his entire adult life frequenting the same smoke-filled back rooms and union halls that they have, weighing up everything from a political perspective. But that does not mean that the Prime Minister is any less skilled at the Dark Arts of politics as they pride themselves on being.
Labour has been out-boxed this week. The public now knows exactly which of the big-ticket items in Christchurch will proceed, and who is paying for what. And a blueprint has been laid out for huge investment both in roading and in public transport in Auckland over the next 15-20 years. John Key has even been canny enough to leave room for the CBD rail loop to come on-stream sooner should growth in the Auckland CBD happen faster than anticipated.
And as O'Sullivan notes, "the fiscal track is moving very nicely, thank you"; excellent news indeed. What a coup it would be for the PM if the fiscal track had moved along so nicely that Bill English was able to announce a small budget surplus for 2013-14, instead of 2014-15, as forecast. We certainly wouldn't bet against it.
This has been National's week on centre stage; of that there is no doubt whatsoever. We wonder if those 65 days until the beginning of spring can't come around soon enough for David Shearer.
Labour's Auckland issues spokesman, Phil Twyford, was yesterday reduced to carping about the cost of the city's transport projects and complaining that the timing for some of the construction was still vague.
"The Prime Minister is talking about a $10 billion commitment to three projects but in his speech he was completely silent about how he is going to pay for them.
"Where on earth is the money coming from?"
Key could have said "You work it out chump, I'm unlikely to be PM by the time a future New Zealand Government has to seriously put its hands in its pockets".
But he later confined himself to telling journalists it could come from various sources, including (take that, Labour!) the Future Investment Fund, into which his Government is tucking the proceeds of its partial privatisation programme; the Land Transport Fund, which holds the proceeds of petrol excise tax and road-user charges; taxpayers through the Consolidated Fund and even the private sector through some nifty public/private sector partnerships (PPPs).
What Key didn't say - and won't until the Government has surety on the numbers - is that the fiscal track is on an upswing and there is a strong possibility Finance Minister Bill English will be able to post a Budget surplus well before 2014/2015 (some Beehive insiders suggest the surplus milestone could be reached even by the end of this year, though that looks optimistic).
When I put the question to him down at the media scrum at SkyCity's conference centre, Key deftly sidestepped it.
But he later conceded that getting government debt down to under 20 per cent of GDP would be the next priority.
In other words, yes, the fiscal track is moving very nicely, thank you.
It must be excruciatingly dreadful for Labour.
Its "show me the money" challenge (delivered without the panache that Key used to slaughter former Labour leader Phil Goff during a debate at the last election) fell flat. Its party strategists know that pushing that line of questioning simply risks Labour being seen as churlish.
But what really galls the Opposition is the fact that Key has stolen Labour's thunder, particularly in Auckland.
Key is now "besties" not only with Auckland Mayor Len Brown, who was positively radiant as he openly rejoiced yesterday that the Government was "backing Auckland", but also with Christchurch Mayor Bob Parker.
Brown will pocket Key's commitment as an endorsement of his own mayoralty, given that he based his first run at the top job on delivering three big-ticket, next-generation transport projects.
And Christchurch mayoral challenger and Labour MP Lianne Dalziel was reduced to complaining from the sidelines as Key and Canterbury Earthquake Recovery Minister Gerry Brownlee cosied up publicly with Parker to announce agreement had been reached on $4.8 billion of investment in Christchurch - $2.9 billion of it coming from the Crown and $1.9 billion committed by the Christchurch City Council - so that projects like the new stadium and a convention centre can proceed.
Key couldn't resist having a flick at Labour during yesterday's stand-up, telling reporters he could understand why the public wasn't warming to Labour because it was "too negative".
What John Key has announced in Christchurch and Auckland in successive days this week is incredibly clever politics. Those on the Left who deride Key as a political lightweight have been left with an entire omelette on their faces.
Key may not have spent his entire adult life frequenting the same smoke-filled back rooms and union halls that they have, weighing up everything from a political perspective. But that does not mean that the Prime Minister is any less skilled at the Dark Arts of politics as they pride themselves on being.
Labour has been out-boxed this week. The public now knows exactly which of the big-ticket items in Christchurch will proceed, and who is paying for what. And a blueprint has been laid out for huge investment both in roading and in public transport in Auckland over the next 15-20 years. John Key has even been canny enough to leave room for the CBD rail loop to come on-stream sooner should growth in the Auckland CBD happen faster than anticipated.
And as O'Sullivan notes, "the fiscal track is moving very nicely, thank you"; excellent news indeed. What a coup it would be for the PM if the fiscal track had moved along so nicely that Bill English was able to announce a small budget surplus for 2013-14, instead of 2014-15, as forecast. We certainly wouldn't bet against it.
This has been National's week on centre stage; of that there is no doubt whatsoever. We wonder if those 65 days until the beginning of spring can't come around soon enough for David Shearer.
du Fresne on Peters
Karl du Fresne probably wouldn't complain at being described by us as a veteran journalist. He admits to having been in journalism for "more than 40 years", which means that he has been writing longer than Winston Peters has been an MP; Peters first entered Parliament after the 1978 General Election and the infamous Hunua electoral petition.
So du Fresne's musings on Peters this week are the product of a career's worth of observations, and should be taken in that context; he opines:
In many ways, the Winston Peters who disrupts the flow of Question Time these days is a pale imitation of the Peters of old. Time, late nights and cigarettes have not treated the bloke they once called Luigi kindly. His "suppmentyqueshin" calls and the words that follow them are at times very difficult to interpret.
Peters can still light up a smoke-filled room with his mischievous grin, but his oratory is nowhere near as sharp as it used to be. As du Fresne notes "it's usually pointless trying to get sense out of him. An interview with him is as futile as a dog chasing its tail."
One has to wonder for how much longer Peters will be able to keep it all up. There's certainly no-one emerging from the NZ First caucus to take his place, and you have to think that when Winston calls "time" on his career (or when the electorate does that for him), there will be no way back. But he has already completed one Lazarus-like comeback.
Winston Peters will never change, and people like John Campbell need to accept that. However willing the spirit is however, Father Time may dull the flesh.
So du Fresne's musings on Peters this week are the product of a career's worth of observations, and should be taken in that context; he opines:
Some people are in the fortunate position of being able to write or say almost anything and get away with it.
Take art critics, for example. Most contemporary art is, almost by definition, incapable of being explained coherently.
It follows that a critic can interpret it any way he or she chooses and sound authoritative, at least to the gullible.
Often the artists themselves have no idea what their works mean. Some of the more honest ones admit it.
The critic, therefore, has total freedom to decide what the artist's creation represents - and if the critique is phrased in words whose exact meaning is impossible to pin down, so much the better.
Much the same applies to wine writers, some of whom are in danger of displacing art critics as the most infamous creators of pretentious tosh.
Because the flavour, aroma and texture of wine is subtle, nuanced and hard to capture in words, a wine writer can use outrageously fanciful descriptive terms and appear knowledgeable. I know, because I used to be one.
Then there's Winston Peters. Even art critics and wine writers should bow to him as the acknowledged master of verbal flummery.
Words cease to have any meaning when they tumble out of Mr Peters' mouth. The sounds that emerge resemble recognisable language but they reveal nothing.
It follows that it's usually pointless trying to get sense out of him. An interview with him is as futile as a dog chasing its tail. Yet journalists keep on trying, as John Campbell bravely did on Campbell Live a couple of weeks ago.
Campbell is an accomplished broadcaster, but perhaps he needs to be gently reminded that Albert Einstein defined insanity as trying the same thing over and over again and expecting a different result.
In many ways, the Winston Peters who disrupts the flow of Question Time these days is a pale imitation of the Peters of old. Time, late nights and cigarettes have not treated the bloke they once called Luigi kindly. His "suppmentyqueshin" calls and the words that follow them are at times very difficult to interpret.
Peters can still light up a smoke-filled room with his mischievous grin, but his oratory is nowhere near as sharp as it used to be. As du Fresne notes "it's usually pointless trying to get sense out of him. An interview with him is as futile as a dog chasing its tail."
One has to wonder for how much longer Peters will be able to keep it all up. There's certainly no-one emerging from the NZ First caucus to take his place, and you have to think that when Winston calls "time" on his career (or when the electorate does that for him), there will be no way back. But he has already completed one Lazarus-like comeback.
Winston Peters will never change, and people like John Campbell need to accept that. However willing the spirit is however, Father Time may dull the flesh.
Quote of the Day - 29 June 2013
Claire Trevett comments on the differences currently between National and Labour:
We note that Ms Trevett's comments were penned before yesterday's Auckland announcements, before the people-mover morphed into a Lexus, speeding away leaving the "battered rickshaw" parked on the side of the road.
Oh dear; how sad; never mind...
If polling tracks were Roads of National Significance, then National is in a people-mover on the Waikato Expressway, occasionally zooming up and down gentle inclines but confronting little that has yet forced it to alter its speed.
Labour, meanwhile, is clinging to a battered rickshaw rattling along pothole-ridden, precipitous back roads hoping like hell to hit a flat stretch. Alongside are the outriders of the Greens and NZ First, trying to pop the rickshaw's tyres so they can purloin its passengers for themselves.
We note that Ms Trevett's comments were penned before yesterday's Auckland announcements, before the people-mover morphed into a Lexus, speeding away leaving the "battered rickshaw" parked on the side of the road.
Oh dear; how sad; never mind...
A bumper season awaits
The central North Island skifields open for the season today, and the forecast is for a bumper season. Here's the weather and snow forecast for opening day at Turoa:
With a snow base already of almost 1.5 metres, the punters will flock to Turoa today. Around the other side of the mountain, Whakapapa is one decent storm away from being fully operational. Given that the skifields traditionally get the bulk of their snow from late July through to September, there's plenty for the tourist industry to be enthusiastic about.
The prophets of doom were predicting a few years ago that climate change would be the death of the New Zealand ski industry, but there's precious little sign of that happening any time soon. Bookings from Australia are said to be at record highs this year. And businesses in towns like Ohakune, Raetihi and National Park will be rubbing their hands together as the punters start to rock up for their alpine fix. The ski industry is an important part of the local economy there.
We're not skiers ourselves, but we love to see local businesses prosper. And there's every indication that that's exactly what will happen this winter, which is very good news indeed.
With a snow base already of almost 1.5 metres, the punters will flock to Turoa today. Around the other side of the mountain, Whakapapa is one decent storm away from being fully operational. Given that the skifields traditionally get the bulk of their snow from late July through to September, there's plenty for the tourist industry to be enthusiastic about.
The prophets of doom were predicting a few years ago that climate change would be the death of the New Zealand ski industry, but there's precious little sign of that happening any time soon. Bookings from Australia are said to be at record highs this year. And businesses in towns like Ohakune, Raetihi and National Park will be rubbing their hands together as the punters start to rock up for their alpine fix. The ski industry is an important part of the local economy there.
We're not skiers ourselves, but we love to see local businesses prosper. And there's every indication that that's exactly what will happen this winter, which is very good news indeed.
High noon for Shearer
It's an important day in the political career of David Shearer today, as the voters of Ikaroa-Rawhiti go to the polls to elect a successor to the late Parekura Horomia. 3News reports:
There's more than just the Ikaroa-Rawhiti seat on the line for the Labour Party and its leader David Shearer this weekend.Shearer is an unpopular leader under a cloud of poor poll results, and his Australian Labor counterpart Julia Gillard has just been deposed in a coup.This makes for an unholy trinity of things the Labour Party wouldn't want to happen in isolation, let alone together.Add to this a Labour MP telling 3 News their leader has been put on notice and a change in leadership can't be ruled out by the end of the year, and David Shearer really has some problems on his hands.Though he is adamant he'll still be leader come next year's election."That's ridiculous. I don't know who this person is, but I was confirmed as leader only four months ago and nothing's changed."
Oregon fights back against tax havens
From our friends at Orgeon State Public Interest Group [click on the image to enlarge]
The fight back spreads.
The fight back spreads.
Nicaragua’s new Cayman/Chinese mega-canal: the world’s biggest tax exemption?
From Martin Hearson, a blog about a proposed new canal to rival (and compete with) Panama's:
"The Reuters story on it notes that the $40bn cost would be four times Nicaragua’s national income"And the Reuters story explains:
"Nicaragua's Congress last week granted Wang's Cayman Islands-registered HKND company a 50-year concession to develop the canal, following a September agreement with president Daniel Ortega. HKND in turn is a unit of HK Nicaragua Canal Development Investment Co., Ltd, a firm Wang had registered in Hong Kong just a month before the deal with Ortega."Back to Hearson, who concludes after examining the draft project agreement:
"The government has agreed to an exemption from all taxes, including capital gains and value added tax, for the Chinese firm building the project (which happens to be registered in the Cayman Islands). The exemption extends to withholding taxes on dividends, interest payments and royalties, all import taxes, and any taxes on expatriate employees. The only source of tax revenue left out of the exemption is “existing labour taxes”. And all of this seems to be indefinite.Let's see where this project goes.
The Cayman Islands company will apparently pay just US$10m a year for the privilege of owning the waterway, although it should be noted that the ownership of the canal will gradually transfer to the government."
Bermuda: tax haven interests 'threaten' to walk out from under London's skirts
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| Bermuda Governor's flag |
Our standard response to this kind of headline is: pull the other one. With a secrecy score of 85 out of 100, Bermuda is a very secretive tax haven (or, if you prefer, a secrecy jurisdiction).
So far, so tiresomely predictable. But there's more to the article. It is, he writes, about
"UK Prime Minister Cameron "summoning" the leaders from the remnants of the British empire to London."By 'remnants of the British empire," he is talking about the 14 British Overseas Territories, of which half are tax havens. And this is about the British Prime Minister this month calling them to London to put pressure on them to curb their secrecy practices. Brown provides the usual offshore window-dressing to say 'we are squeaky clean' - every tax haven in the world does that, of course, as part of a theatre of probity to cover up some very unpleasant business - and then he adds:
"in taking this step, Cameron has extended the reach of the UK beyond its constitutional powers with regard to Bermuda. Under Bermuda's constitution – admittedly, merely an order in council of the UK parliament – Bermuda retains power over economic and fiscal matters, not the UK. Cameron's actions have shown little regard for the allocation of powers under our constitution and it does not bode well for the future."Which is untrue. Take a look at this UK government white paper, for instance, which states:
"As a matter of constitutional law the UK Parliament has unlimited power to legislate for the Territories."And read plenty more in this report by Christian Aid and the IF campaign.
The problem is: the City of London has been making too much money from Britain's tax haven racket, and so it has made sure that wrist-slapping is usually the worst that happens.
Finally, a kind of threat. Although Brown's not obviously speaking in an official capacity, in our experience of small captured island states like Bermuda, you generally don't speak out so forcefully without at least an informal nod from the powers that be.
"Independence has been an issue little discussed since the 1995 referendum, when a low turnout spurned by a boycott called by one of the two parties saw a firm rejection of nationhood. If Britain continues down the path of meddling in the economic affairs of overseas territories and seeming to dictate a course of action, particularly while the territories are already working to meet international obligations, there will be a battle akin to that of David and Goliath. But for the David that is Bermuda the recourse may simply be the path to autonomy."This is pure bluff. Bermuda earns its economic rents from two factors, perhaps equally important: one, its zero-tax environment and secrecy facilities; and two, its very close, half-in, half-out constitutional relationship with the United Kingdom: the constitutional and legal bedrock that reassures all that flighty money that it is safe. If Bermuda were to whip this bedrock out from under its feet, it could still be a secrecy jurisdiction - but it would be a more marginal one.
We have seen this kind of threat before. It is empty.
UNCTAD, new report on global investment flows
From UNCTAD, a detailed new report on international investment flows. Among other things, it notes:
Investments to OFCs remain at historically high levels. In 2012 FDI flows to OFCs [offshore financial centres] were almost $80 billion, despite a contraction of about $10 billion (-14 per cent) compared with 2011. Flows to OFCs have boomed since 2007, following the start of the financial crisis. The average annual FDI inflows to OFCs in the period 2007–2012 were $75 billion, well above the $15 billion average of the pre-2007 period (2000–2006).This blog is merely a marker for this report: due to time constraints we cannot currently examine it in detail. Among other things, we'd like to understand what they mean by "OFC" Other useful and fairly recent papers on this subject, include Francis Weyzig's paper on tax treaty shopping here, focusing on the Netherlands, and ActionAid's recent report estimating that:
"one in every two dollars of large corporate investment in developing countries is now being routed from or via a tax haven."
Thursday, June 27, 2013
Delaware corporate law: directors have no obligation to minimise taxes
We have written a fair bit recently about the question of whether or not corporate directors have a fiduciary duty to avoid taxes. Our blog on Wednesday traced profound historical changes in many countries from the high-growth era where corporate directors felt they had wide duties to society and to their shareholders, to the more recent situation where that focus narrowed ever further downwards to a focus on shareholders to the exclusion of society. The latter position, of course, would make corporate tax avoidance more acceptable to them (although it still says little about the fundamental question of just how aggressive they should be in trying to dodge tax.)
But the blog and preceding blogs also showed that while the changes in ideology and corporate culture have been profound, at an official level directors are still required to have regard for wider society, not just a narrow shareholder group, when they make their decisions. There is no duty on directors to dedicate their hours to dodging tax. The blog demonstrates this for the U.K., citing a U.S. professor as saying:
"The ideology of shareholder value maximization lacks any solid foundation in corporate law, corporate economics, or the empirical evidence."
Now, the Financial Times has published a letter by Wasima Khan at Erasmus law school in Rotterdam, pointing to something more specific related to the U.S. state of Delaware, which (through serving as a kind of de facto laissez-faire offshore haven for corporate governance within the United States) has become the most influential state for jurisprudence with respect to corporate governance. (Hat tip: Katrin McGauran.) It cites Delaware court rulings:
The tax stance described above stems from Delaware's "business judgement rule" which gives corporate bosses quite wide leeway to run their businesses. This rule can have negative consequences, in that directors have sometimes been able to get away with some quite egregious abuses of shareholders, such as voting themselves huge compensation packages, and indeed this wide freedom to business bosses is one reason why so many have chosen to incorporate there. (This legal blog, aptly called Theracetothebottom.org, has endless material about this.)
But in this particular case the business judgement rule has had a more positive outcome. The same court ruling noted:
One more for our Corporate Responsibility page.
Finally, as a fascinating aside to this debate, which is only tangentially about the 'shareholder value' obsession, see Clayton Christensen's article in Deseret News entitled The New Church of Finance.
But the blog and preceding blogs also showed that while the changes in ideology and corporate culture have been profound, at an official level directors are still required to have regard for wider society, not just a narrow shareholder group, when they make their decisions. There is no duty on directors to dedicate their hours to dodging tax. The blog demonstrates this for the U.K., citing a U.S. professor as saying:
"The ideology of shareholder value maximization lacks any solid foundation in corporate law, corporate economics, or the empirical evidence."
Now, the Financial Times has published a letter by Wasima Khan at Erasmus law school in Rotterdam, pointing to something more specific related to the U.S. state of Delaware, which (through serving as a kind of de facto laissez-faire offshore haven for corporate governance within the United States) has become the most influential state for jurisprudence with respect to corporate governance. (Hat tip: Katrin McGauran.) It cites Delaware court rulings:
This Court has concluded that “there is no general fiduciary duty to minimize taxes."We have criticised Delaware for many reasons -- not least its role as a 'captured state' willing to pimp its laws out to financial interests from elsewhere -- but in this case the arguments are rather more nuanced.
The tax stance described above stems from Delaware's "business judgement rule" which gives corporate bosses quite wide leeway to run their businesses. This rule can have negative consequences, in that directors have sometimes been able to get away with some quite egregious abuses of shareholders, such as voting themselves huge compensation packages, and indeed this wide freedom to business bosses is one reason why so many have chosen to incorporate there. (This legal blog, aptly called Theracetothebottom.org, has endless material about this.)
But in this particular case the business judgement rule has had a more positive outcome. The same court ruling noted:
"a decision to pursue or forgo tax savings is generally a business decision for the board of directors. Accordingly, despite the Plaintiff’s contentions, Delaware law is clear that there is no separate duty to minimize taxes."We noted earlier how John Kay described UK company law as requiring directors to have regard to a wide array of stakeholders, not just narrow shareholders, and cited Lynn Stout as saying that this was even more so for the United States. Delaware case seems to confirm that.
One more for our Corporate Responsibility page.
Finally, as a fascinating aside to this debate, which is only tangentially about the 'shareholder value' obsession, see Clayton Christensen's article in Deseret News entitled The New Church of Finance.
When life imitates art
We blogged earlier in the week about "whistleblower" Edward Snowden (who isn't actually a whistleblower at all), and his possible plight about being stuck in transit. Well, that is exactly what has happened; the Herald reports:
Snowden's plight is right out of the movies; check this out:
Edward Snowden, the United States intelligence whistleblower, could remain stuck in limbo in a Moscow airport for weeks or months.
Russian media reported a source "close to Mr Snowden" saying that he could be forced to stay in Russia indefinitely because US authorities had annulled his passport.
President Vladimir Putin said on Wednesday that the former CIA and National Security Agency technician was staying legally in the transit area of Sheremetyevo Airport after flying in on Monday from Hong Kong, where he leaked details of widespread surveillance by US security services of American citizens' emails and telephone calls.
There appeared little urgency over his departure. The Daily Telegraph and other media scoured Sheremetyevo's three southern terminals yesterday but airport staff, receptionists at a capsule hotel, policemen, Russian consular officials and passengers all claimed they had not seen the American.
It seemed likely the whistleblower was in a closed area of the airport and WikiLeaks, the organisation that has been supporting Snowden, said he was safe and well.
Snowden's plight is right out of the movies; check this out:
For Tom Hanks' character, there was a happy ending. For Snowden however, the ending is likely to be far from happy. His US passport has been annulled, he cannot enter Russia or any other country, and the transit lounge at Sheremetyevo Airport is going to lose its novelty after a few days.
Still, he has no-one to blame but himself.
Photo of the Day - 28 June 2013
The long and the short of it; seven-footer Steven Adams is welcomed to the NBA by Commissioner David Stern who is considerably less than seven feet tall!
UPDATED: Steven's big day
UPDATE: Steven Adams is the #12 pick in the NBA draft. He has been picked by the Oklahoma City Thunder. The Thunder's fan base has just increased by around 4.5 million!
Congratulations Steven Adams - New Zealand's first ever first round draft pick.
Hat-tip (for the photo): Jack Tame from TVNZ
*****************************
It's a huge day for Kiwi basketballer Steven Adams today. The seven-foot tall Adams is poised to become the first New Zealander ever to have been a first-round pick in the NBA draft.
We profiled Adams on Monday. And we will be keeping a close eye on the draft when it starts, live on ESPN around midday. Adams has impressed a number of team bosses and scouts, and the pundits are tipping him to be picked up inside the top 14 picks.
And Steven Adams will be there in person, having been invited to the Green Room at the Barclay Centre with other top draft hopes. It will be an exciting but nervous day for the young player.
We'll bring updates on the draft as it happens; kia kaha Steven Adams!
Tweet of the Day - 28 June 2013
We heard the story this morning of the woman from Dunedin who mistook a tube of superglue for her lip gloss. NBR journalist Rob Hosking takes her predicament a step further:
Need anything more be said?
Need anything more be said?
Playing futile games
The Auckland council has taken an official stance against the Government's deal with Sky City. TVNZ reports:
But they are missing out some details.
That's partially because the details haven't been all confirmed yet. How can they oppose a deal that hasn't even been finished yet?
They also don't mention that this deal will NOT see a rise in the number of pokie machines in Auckland. The other measures that have been put through has actually had a significant impact on the number of pokie machines. There has already been a reduction of about 3000 pokie machines since National came into power. Adding 230 to Sky City is less than 10% of that number.
I am a statistics teacher. As a result I have an aversion to pokie machines, as I think they are generally just a desperation tax. However if what we are doing is moving pokie machines from pubs in poor suburbs into a controlled environment in the central city, and getting a convention center as part of the deal, that doesn't sound too bad.
However we don't know the details. So when 10 councilors come out and officially oppose it seems like nothing more than playing a futile political game, trying to do a favour for their friends in the Labour and Green parties on a national level. I'm not sure that's what Auckland rate-payers really want from their council.
Councillors object because they feel the social impact from problem gambling will be too high.This seems a noble thing to do on the outset. The council are standing up and saying that they don't want more gambling in Auckland, and they are concerned about the rise in problem gambling that this might cause.
Councillor Cathy Casey wanted to know if councillors thought the deal was morally correct.
She said the majority of the council has sent a very strong message to the Government that this deal is wrong.
But they are missing out some details.
That's partially because the details haven't been all confirmed yet. How can they oppose a deal that hasn't even been finished yet?
They also don't mention that this deal will NOT see a rise in the number of pokie machines in Auckland. The other measures that have been put through has actually had a significant impact on the number of pokie machines. There has already been a reduction of about 3000 pokie machines since National came into power. Adding 230 to Sky City is less than 10% of that number.
I am a statistics teacher. As a result I have an aversion to pokie machines, as I think they are generally just a desperation tax. However if what we are doing is moving pokie machines from pubs in poor suburbs into a controlled environment in the central city, and getting a convention center as part of the deal, that doesn't sound too bad.
However we don't know the details. So when 10 councilors come out and officially oppose it seems like nothing more than playing a futile political game, trying to do a favour for their friends in the Labour and Green parties on a national level. I'm not sure that's what Auckland rate-payers really want from their council.
Emmerson sticks to his knitting
Rod Emmerson has obviously been reading the Australian Women's Weekly:
This is great stuff from our favourite cartoonist, and we can't help but wonder if it is prophetic, given the fate that befell Julia Gillard just 36 hours ago. And what is Mr Shearer knitting; a stab-proof vest, made of steel wool?
Well done Rod Emmerson!
This is great stuff from our favourite cartoonist, and we can't help but wonder if it is prophetic, given the fate that befell Julia Gillard just 36 hours ago. And what is Mr Shearer knitting; a stab-proof vest, made of steel wool?
Well done Rod Emmerson!
Counting the days
The Labour Party caucus is leaking like a sieve. Patrick Gower reports via 3News:
Labour leader David Shearer has been put on two months' notice by his own MPs - if the poll ratings don't improve, his leadership will be challenged.A Labour MP told 3 News today that Mr Shearer had until spring - two months away - to pick up his and Labour's performance.The MP, speaking on condition of anonymity, said: "The caucus is just really flat. It's not panic or anxiety just yet, but a couple more bad polls and it will be. David's got a couple more months. A change in leadership cannot be ruled out before the end of the year."Spring time is when people will get really nervous, just over a year out from the election. We don't want to get into the "Goff-zone", where it's too late to change the leader, but you've got someone in there the public just don't want -the phone is just off the hook."It is rare for Labour MPs to speak so openly of leadership concerns.The MP who spoke to 3 News is not a loyal supporter of leadership rival David Cunliffe. That makes the comments more significant as it shows there are broader concerns in the caucus about Mr Shearer's performance.
This is a significant scoop for the terrier-like Paddy Gower. And if it is true (and there have been no denials thus far), the Labour Party must be very worried.
Rumours have been doing the rounds for a week of so that Labour's own polling is showing a 2 in front of the party's support. If that is the case, the angst of Labour Party caucus members is entirely understandable.
It's no wonder that Labour has poured such resources into the Ikaroa-Rawhiti by-election tomorrow. We saw a photo yesterday of candidate Meka Whaitiri, Mr Shearer and three other Labour MP's at Parekura Horomia's grave at the Kohimarama urupa. Given that Parliament was sitting yesterday, it seems a bit strange that more than 10% of Labour's caucus was out campaigning in a supposedly safe Labour seat whilst we are paying them to be at work. It will be interesting to see the next round of MP travel figures!
But if Labour wins tomorrow by less than 5000 votes, the finger is going to be pointed at David Shearer all over again. Parekura Horomia had a majority of over 6500 votes in 2011, and whilst much of that was a personal endorsement of the popular MP, the electorate should be a Labour shoe-in. Anything less than a large win by Ms Whaitiri will be a loss for Mr Shearer.
If a week is a long time in politics, two months must seem like a lifetime to David Shearer.
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