Your Annoying Neighbor is Still Lighting off Fireworks. When Do You Call the Cops?

The 4^th of July is now just days away, and while the excitement of celebration builds up in all of us, so does the dread of knowing some neighbors will be extending their festivities far past Independence Day. Whether you’re already hearing the fireworks go off, they’re being lit off at 3:00 a.m. on July 4^th, or a week after the holiday you still hear them trying to get rid of those left over firecrackers, you should know when you can and when you can’t call the police. Citizens of Fishers, Noblesville, Westfield and Carmel; Attorney Mario Massillamany has your answer.

According to Fishers Ordinance 041513C, “It shall be unlawful to use or display or permit to be used or displayed within Fishers' municipal boundaries any type of consumer firework on any day or time other than the following:

(A) Between the hours of 5:00 p.m. and two hours after sunset on June 29, June 30, July 1, July 2, July 3, July 5, July 6, July 7, July 8, and July 9;

(B) Between the hours of 10:00 a.m. and 12:00 midnight on July 4 (…).”

The Noblesville Common Council unanimously approved Ordinance #3-1-09, an ordinance revising the Noblesville Fire Prevention Code.  This ordinance adopts changes approved by the Indiana General Assembly under Indiana Code 22-11-14-10.5.  The City of Noblesville's fireworks ordinance now states that consumer fireworks may only be used in the Noblesville city limits during the following days and times:

“(A) Between the hours of 5:00 p.m. and two hours after sunset on June 29, June 30, July 1, July 2, July 3, July 5, July 6, July 7, July 8, and July 9;

(B) Between the hours of 10:00 a.m. and 12:00 midnight on July 4 (…).”

The Westfield Fireworks ordinance states that the use of fireworks within the City of Westfield is prohibited at all times and locations with the following exceptions:

 “(A) Between the hours of 5:00 p.m. and 12:00 midnight on June 29, June 30, July 1, July 2, July 3, July 5, July 6, July 7, July 8, and July 9;

(B) Between the hours of 10:00 a.m. and 12:00 midnight on July 4 (…).”

Carmel’s Fireworks Ordinance D-1968-09 similarly states that, “Legal consumer fireworks can be shot off:

Between the hours of 5 p.m. and midnight on the following days:

o   June 29

o   June 30

o   July 1

o   July 2

o   July 3

o   July 5

o   July 6

o   July 7

o   July 8

o   July 9

Between the hours of 10 a.m. and midnight on July 4^th (…).”

Pay close attention to the specified dates and times of your city’s ordinance. If you have a neighbor that is not complying with said ordinance, call the local law enforcement.  Have a fun and safe 4^th of July, and remember to be mindful of the above regulations!

Mario Massillamany is a founding partner of Massillamany & Jeter LLP, a full-service law firm serving central Indiana.  For more information on this topic, please contact Mr. Massillamany at (317) 432-3443 or by e-mail at: mario@mjattorneys.com.

This article is not intended to serve as legal advice.  Should you have questions about this topic, you should consult with a licensed lawyer.

How to Hold Your Landlord Accountable: Your Rights as a Renter

(Fishers, Indiana) Typically, as a tenant, one pays rent on a month-to-month basis for a set term of months, also referred to as a lease.  Throughout the duration of that lease, the tenant is required to meet certain obligations, so it is important that the leaseholder understands their rights, responsibilities and obligations to the landlord.  It is then equally as important that the leaseholder understand what to hold their landlord accountable for.

In Indiana, under Indiana Code 32-31-8-5, a landlord must deliver the rental premise to the tenant in compliance with the rental agreement.  Meaning that the rental property must be in a safe, clean and in habitable condition.  The Landlord must comply with all health and housing codes applicable to the rental premise.  If common areas exist, also known as shared spaces, the Landlord is responsible for making sure these areas are clean and maintained in proper condition.  It is also standard that the Landlord ensure the rental property has fully functioning electrical systems; plumbing systems, hot and cold running water, sanitary heating, ventilating, and air conditioning systems at all times.

In concern with the tenant’s individual rights, the landlord may not raise the amount of rent or change the terms of the lease until after the lease has expired.  However, if the lease specifies that a change may be made mid-lease, it is permitted.  A landlord may not force you to vacate prior to the expiration of the lease without cause.  Such causes consist of: failure to pay rent, or violate any other significant term of your lease.  As stated under Indiana code 32-31-1-6, a landlord must provide you with 10 days notice to pay the rent or vacate the premises before filing an eviction lawsuit.  A tenant has the right to pay the rent in full before the notice period expires.  

If you or a family member has had their tenant rights violated, Massillamany & Jeter LLP can help assist you in that matter. Call their offices at (317) 432-3443 to schedule a free consultation with a lawyer that specializes in landlord-tenant law, or just visit their website to learn more about their tradition of excellence and selection of practice areas.

Indiana’s New Second Chance Law

Mario Massillamany

We all make mistakes in our youth. Sometimes even as adults. Luckily for us, the Indiana General Assembly just revised the expungement laws (Indiana Code 35-5-5.5 and 35-38-8, 9) to give Hoosiers a second chance. The Legislature understood that old arrests and convictions can prevent you from getting a job, renting an apartment, serving in the military, or participating in service groups. Known as the “Second Chance Law,” the new law allows for sealing arrest records and expunging certain convictions.

Sealing Prior Arrests:
Sometimes a person will get arrested but the charges will be dismissed due to mistaken identity, not committing the crime, or lack of evidence. But those arrests still appear in that person’s record. Under the new law, if you were arrested but never convicted of the crime charged, you can have the arrest sealed one year later. This can be vital for future employment, as the arrest will not appear in a background check, nor would you need to disclose the arrest on a job application.

 

Expunging Your Record:
If you were convicted of a misdemeanor or Class D Felony that was reduced to a misdemeanor (AMS), you can petition the court for an expungement five years after the conviction. For D Felony convictions that did not result in a bodily injury, the waiting period is eight years from the date of conviction. For more serious felonies, the waiting period will be either eight or ten years and can require written consent from the prosecuting attorney. Note: expungement is not available to sex offenders, violent offenders, or those convicted of official misconduct.

 

How Records Are Expunged:
If you have multiple convictions that qualify, you must expunge them at the same time. If your convictions occurred in the same county, you can file them under one petition. If they are from multiple counties in Indiana, you must file separately in each county. There are no filing fees for sealing records but there is a $141 state civil filing fee for expunging convictions. You must not have an existing or pending driver’s license suspension or pending charges to get an expungement.

 

Do You Need an Attorney?:
Due to the intricacy of the law and only getting one chance at expungement in the State of Indiana, it is highly recommended that you consult an attorney. It is a once-in-a-lifetime opportunity that restores all of your civil rights, including the right to vote and the right to own firearms. Take advantage of the new law to clear those youthful (or adult) indiscretions from your record.

 

If you or someone you know needs an expungement or their records sealed, call the experienced attorneys at Massillamany & Jeter LLP.  We are available to answer your questions 24 hours a day, 7 days a week at 317-432-3443 or Mario@mjattorneys.com.

Supreme Court Clarifies Who Is The “Maker” Of A Statement For Rule Private Rights Of Action Under 10b-5

One of the decisions securities fraud attorneys need to make before even bringing the claim is who to name as defendants in the lawsuit. Typically this is the party who made the material misstatement, but what does that really mean? In the case of many Wall Street firms the identity of the real maker of the statement can become cloudy, with wholly own subsidiaries and corporations formed by other corporations all interacting with each other. This is the exact issue that the Supreme Court has recently addressed, defining who the “maker” of a statement is. Although the Supreme Court provided clarity in the opinion about who was a “maker,” this clarity created legal loopholes which allow corporations to avoid liability under private rights of action of Section 10b-5 for those entities with creative ways of creating additional corporations that observe corporate formalities.
In the United States Supreme Court case of Janus Capital Group, Inc. v. First Derivatives Traders, decided by the Court on June 13, 2011 the Plaintiff, First Derivative Traders, brought a private 10b-5 securities claim as a class representatives against Janus Capital Group (“JCG”). The allegation was that JCG and its wholly owned subsidiary, Janus Capital Management (“JCM”) made false statements in mutual fund prospectuses filed by Janus Investment Fund (“JIF”) — for which JCM was the investment advisor and administrator — and that those statements affected the price of JCG’s stock. Although JCG created JIF, JIF is a separate legal entity that is owned entirely by mutual fund investors.

To he held liable under a 10b-5 claim for false statements the party must, “make any untrue statement of material fact.” The issue was whether or not the investment advice and counsel given by JCM to JIF, which it incorporated into its prospectus, constituted “making” a misrepresentation for the elements of a 10b-5 claim.

The district court dismissed the claims, finding the defendants were not the makers, and then the Fourth Circuit reversed. Then, the Supreme Court stepped into the fray granting certiorari to the case. There the plaintiffs continued to argue that JCG had made the statements, and in addition, also argued that JCG should be held liable as a control person under Section 20(a). The Supreme Court disagreed, holding that JIF was the only “maker” of the statement and therefore JCM and JCG could not be held liable under a private action under Rule 10b-5.

The Supreme Court clarified that JCM, even though it was the primary architect of JIF’s prospectus did not “make” the misrepresentations within the prospectus, but instead JIF was their maker. The Court found that under 10b-5 the “maker” of statements, “is the person or entity that has ultimate authority over the statement, including its content and whether and how to communicate it.” In its reasoning the Court made the analogy to a speechwriter and a speaker saying, “Even when a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it.”

The Court also made clear the stark division between bringing a private action under 10b-5 and the SEC bringing claims under the rule. Relying on its decision in Central Bank of Denver N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), the Court stated that the private right of action under rule 10b-5 does not extend to aiders and abettors of securities fraud, those avenues of redress being reserved to the SEC. Since, the Court concluded that the JCM did not “make” the misrepresentation under 10b-5 the Plaintiffs claim failed.

This ruling seemingly creates a massive loophole in the scope of private claims actionable under 10b-5, in essence shielding parties that originate misrepresentations simply because they were not the party to effectuate their dissemination. The dissent to the Court’s opinion voiced by Justice Breyer picked up on this inequitable result. Justice Breyer argued that the Court’s definition of “make” was far too limited and in fact had no basis not only in securities law but in the wider English language usage of the word. For him, to construe “make” as the Court did was to artificially create a statutory loophole that limited the effectiveness of private claims under 10b-5 without support of legislative intent to do so. When taking in the policy concerns focused on the availability of equitable remedies for securities fraud and the maintenance of a fair market place, Justice Breyer’s position is both more sensible and defensible. Unfortunately though, it is not the law of the land.

Wrongful Death Of An Adult

At Starr Austen & Miller we help family members who have experienced the wrongful death of an adult loved one, as well as a child. (Click here for more information about child wrongful death claims, since they are handled differently under a different statute.)

When a family member dies it can be a very emotional and gut wrenching experience. Unfortunately, when that death was caused by another person, in addition to having to deal with the grief and loss the surviving family members may also be left with complicated legal issues.

A wrongful death lawsuit may be necessary if a loved one dies as a result of a truck or automobile accident, work related injuries, medical negligence, or injury from a defective product, for example.

Even when a death is accidental in nature, if there is negligence involved, it may allow surviving family members to get compensation for their loss.  The Indiana Wrongful Death Statute, and accompanying case law have confirmed what kinds of damages are, and are not allowed, and it depends on many factors surrounding both the decedent and the surviving family members.

If a decedent has left behind surviving dependents, such as a spouse, dependent children or other dependent next of kin, then the following damages may be awarded, taking into consideration both the decedent’s age, health and life expectancy and how long the dependents were expected to remain so:

•  Loss of earning capacity, including probably future earnings, reduced by persona living expenses

•  Value of future support the dependents could have reasonably expected to receive

•  Loss of love, care and affection that dependents could reasonably have expected

If a decedent, on the other hand, did not have any dependents since he or she was unmarried, but did have either parents or non-dependent children who survived, then, as long as those parents and/or children had a genuine, substantial and ongoing relationship with the decedent, they could be awarded damages for loss of love and companionship.

In addition to the damages listed above, the personal representative of the decedent’s estate could also be entitled to damages in a wrongful death action for the following:

•  Value of hospital and other health care services provided to the decedent in connection with the injuries caused by the defendant

•  Value of necessary and reasonable funeral and burial expenses

•  Cost of administering decedent’s estate, including reasonable attorney’s fees and expenses

•  The costs of pursuing the wrongful death lawsuit, including reasonable attorney’s fees and expenses

You cannot receive punitive damages in a wrongful death action used to either punish the defendant or discourage similar conduct. In addition, you cannot receive damages to compensate you for your grief.

As mentioned previously, Indiana has specific statutory laws about wrongful death in this state, and they can be complicated, with issues experienced attorneys should handle for you. The attorneys at Starr Austen & Miller are experienced in this specialized area of the law and are here to assist you to get the maximum compensation allowed by law for your circumstances.

If you’ve lost a loved one due to someone else’s fault or negligence, we’re here to help.

Deceptive Accounting Practices Can Constitute Both Material Misrepresentations And Scienter For 10b-5 Claims

In securities fraud litigation it can be difficult to identify the material misrepresentation sometimes without careful scrutiny because typically companies try to be sly about it. This is what happened with Gateway, Inc. in a case recently, where the company tried to use deceptive accounting practices to misrepresent to investors the health of its quarterly sales. Turns out that these deceptive accounting practices constituted both the material misrepresentation, and because the deception made it look like Gateway was trying to hide something it also constituted the scienter element necessary for the case.

In the case styled Securities And Exchange Commission v. Todd, decided by the Ninth Circuit on June 23, 2011 the SEC brought a securities fraud claim against Gateway Inc. and several of its corporate officers under the Securities Exchange Act of 1934, section 10(b) and Rule 10b-5. The allegations in the complaint dealt with three unusual transactions during the year 2000 where Gateway had unusual large sales to other corporations and reported them in a deceptive way through its accounting practices to make it look like they had better normal quarterly sales than they really did.

The case actually went all the way to a jury trial, where the jury found the former Gateway financial executives liable on all claims by the SEC. Thereafter, the defendants brought motions for judgment as a matter of law, which the district court granted, basically nullifying the jury’s decision. The SEC then appealed to the Ninth Circuit, which after review of the evidence determined that at least some of the district court’s orders should be reversed and the jury’s verdict reinstated for the 10b-5 claims.

Specifically, the Court of Appeals reviewed the evidence supporting the viability of the SEC’s 10b-5 claim. Liability under 10b-5 requires evidence of (1) a material misrepresentation, (2) in connection with the purchase or sale of security, (3) with scienter, (4) by means of interstate commerce. In reviewing the jury verdict of the Plaintiffs’ 10b-5 claim the court acknowledged that the standard of review for such considerations was that “a jury’s verdict must be maintained if it is supported by substantial evidence.” In light of the facts, the majority of the court’s attention focused on whether or not the SEC had provided enough evidence to support the jury’s verdict on the misrepresentation and scienter elements of their claims. The court concluded that the deceptive accounting and reporting of these incidents by Gateway was enough evidence to support the jury’s verdict in regard to the misrepresentation and scienter elements of the 10b-5 claims.

The Gateway decision illiterates one of the basic protections afforded by securities

fraud litigation. While not involved in a blatant Ponzi scheme or similar activity the corporate officers of Gateway were riding the line of accurate account and report
practices in an effort to maximize the company’s profits and live up to the market
forecasters’ expectations of their quarterly revenue growth. Feeling the weight of a
more competitive and shrinking personal PC market in 2000 Gateway felt pressure to
preserve its perception of corporate health through suspect accounting. This type of
misrepresentation is no less harmful to investors and the case is a way of sending a message to companies not to engage in these deceptive accounting practices in the future.

Contractual Promises For The Future Which Are Breached Are Not Material Misrepresentations Under Securities Law

All securities fraud lawyers know it can be tough to make it past a 12(b)(6) motion in securities fraud cases, because of the intense scrutiny all complaint allegations get under the law and procedural rules. That’s why its important to first make sure you properly identify the material misrepresentations upon which your client relied, since this is the cornerstone of the case. Unfortunately, what we’re learning is that promises of future behavior that investors may rely upon, if they are part of contractual language, will not constitute the first critical element of securities fraud cases.

The recent case of Reese v. BP Exploration (Alaska), Inc., decided on June 29, 2011, by the Ninth Circuit illustrates this point well, since many of the claims brought against the company failed because the court determined no material misrepresentation was properly alleged. The appeal originated with a securities fraud action involving British Petroleum Exploration of Alaska (BPXA). In fall 2006 BPXA was in charge of supervising its pipeline and oil production facilities in Prudhoe Bay Alaska. During that time two separate pipeline leaks resulted from the buildup of bacterial colonies in the pipeline due to sediment accumulation. In the resulting action under the Clear Water Act brought by the U.S. government BPXA admitted to being aware of the sediment buildup before the spills. The class of Plaintiffs represented by Claude A. Reese, were those individuals who purchased shares of BP in the time frame leading up to the spill, who collectively suffered billions of dollars of capital loss when the stock plummeted in the spill’s aftermath. The Plaintiffs alleged that BPXA had given them assurances that such spills, which had occurred before, were a thing of the past due to new safety protocols. Based on that assurance the Plaintiffs filed a securities fraud suit against BPXA.

The Plaintiffs claimed that BPXA made false and misleading statements about its

operations in Prudhoe Bay through the SEC filings of the BP Prudhoe Bay Royalty
Trust, a trust created to distribute royalty interest from oil production in Prudhoe Bay to
purchasers of Trust units traded on the New York Stock Exchange. When BPXA created
the trust, it executed an Overriding Royalty Agreement to govern the details of the
interest distribution. Pursuant to the Overriding Agreement, BPXA contracted to operate
its production in Prudhoe Bay according to a “prudent operating standard.” Then during
each quarter the Trust attached the Overriding Agreement, with its “prudent operating
standard” clause to its SEC filings.

The Plaintiffs claim that this act when taken with the admitted negligent operation of the Prudhoe Bay pipeline constituted a material misrepresentation and the grounds for a securities fraud action. The Court of Appeals rejected this claim by the Plaintiffs using the general “reasonable investor test,” which holds that a statement is misleading in the context of securities fraud if “it would give a reasonable investor the impression of a state of affairs that differs in a material way from the ones that actually exist.” For the Court of Appeals the Trust’s Overriding Agreement, with its prudent operating procedure clause, constituted only a contractual promise to perform services, not a material guarantee that such services would be performed in the future. They reasoned that a breach of a contractual promise of future action does not constitute a material misrepresentation that will support the allegation of fraud. Thusly, the Court of Appeals affirmed the District Court’s partial dismissal of the Plaintiff’s claim based on a failure to show a material misrepresentation.

The case provides a valuable lesson in the standards to which investors will be held when engaging in securities trading. Recent trends in securities law focus on the doctrine of “investor beware” and increasingly hold investors to a high standard of due diligence in their investment activity. Here the court held that investors should not assume that a contractual promise of a company to act in a certain manner is a guarantee of such action, relying on the contractual doctrine of efficient breach, which assumes that people will sometimes intentionally breach their contractual agreements for no other reason than financial gain. While the Court of Appeals left open the issue of whether or not the Plaintiffs could recover contractual remedies from BPXA, their ruling illustrates the proactive environment of investing that all Plaintiffs should be aware is required.