FW lawyers and other professionals - Petition to assist FW members suffering from retailer lawsuit

SUCKISSTAPLES said:   Then nsdp why jail time in the Washington criminal case? You yourself said their activity is not wire fraud in the 9th district , which is where Washington is located .

There is no jail time under the CFAA 18 USC1030 in this case in the 9th Circuit but for 18 USC 1341 1343 charges there is jail time. 18 USC1030 and 18USC 1343 are like two overlapping circles in a Venn diagram. There are crimes that are common to both and crimes which will be exclusive to each statute. A contaminated flash drive used to corrupt a computer is covered under 1030 but not necessarily 1343. a bogus wire transfer would be 1343 not 1030. Careless on my part to not make the difference between 1030 and 1343 clear.

nycll said:   Dave, with due respect, you are focusing too much on the technicalities and not enough of the real story here. I concede that I'm focusing on the technicalities (e.g. elements of fraud), and can certainly understand why someone might object to my approach on these grounds. The each of the technical detail may not constitute fraud, but the real story the jury will be convinced of is that the brothers repeated ordered merchandise which they clearly knew would not be shipped (or they had the intention of buying). So their actions were only for the purpose of earning cb, i.e, exploiting a computer system bug.I agree. Were I the Chius, I would not want to face a jury on these charges. Moreover, it's obvious that the real purpose of these transactions was to harvest CB, regardless of whether or not there was a specific falsity or not. The strength of our legal system based on jury trials is that the whole, real human story trumps technicalities. I don't dispute this. However, that system makes it imperative that the "officers of the court" act as such, e.g. WRT the charges they do (or don't) file.

To wit: if a jury is shown the facts of this case, and they think the Chius will either (a) walk away keeping the $650K with no restitution, or (b) be convincted of criminal wire fraud, my guess is they'll vote to convict, *even if* the prosecution doesn't sucessfully prove that all the requirements of the criminal fraud statute at issue are met. That's because they know that the behavior is not just wrong, but egregious, and it's only just that the Chius pay.

OTOH, suppose the jury was instead empowered to decide whether or not the Chius would have to make full restitution (through asset siezure, future wage garnishment, or whatever was necessary), pay all of Nordstrom's legal fees, and if appropriate pay punitive damages to boot. In such a scenario, I'm much more certain they would vote to find them (civilly) liabile. The case wouldn't have to turn on questions like whether the elements of fraud were committed. And IMO the caselaw would be much less problematic.

I hope this clarifies my view somewhat. Regardless, I appreciate the your reply nycll!

Seems like FW is suing them too:

http://www.scribd.com/doc/89333357/Fatwallet-v-Chiu-from-BrandVe...

nsdp said:   dshibb said:   calvinandhobbes said:   dshibb said:   A) It doesn't matter. Precedent is precedent. If the courts have found that ignorance of the terms and conditions is sufficient for a defense than it applies *in all cases* regardless if you think that is right or not.The word is "reasonable." With regards to the terms and conditions regarding the hidden "$10k payment", it isn't reasonable that a customer would expect a $10k fee for buying a tee shirt, just like it's completely reasonable that they would know they aren't entitled to this money. You are using a "reasonableness" argument when the reasonableness goes against the brothers in this case.
B) The problem is that the knowledge of terms and conditions is a key element to proving the case. You can't just apply a different standard because in this instance the defendants are the ones that came out ahead.I am not applying a different standard. A hidden $10k fee for a t shirt is completely unreasonable. An expectation of this money being legit is, again, completely unreasonable, thus, I'm using the exact same standard.

'Reasonableness' has nothing to do with this issue. The subject is whether or not online terms and conditions can hold firm in court. The answer is no! Everything else your saying has nothing to do with the issue. And I just suspect your just making it up.

Spurious argument. Knowledge of T&C is not an element of wire fraud.

There are essentially two critical elements the prosecution must prove in a Wire Fraud case under the current Federal Wire Fraud Statute. These elements are first having devised or intending to devise a scheme to defraud, or to perform specified fraudulent acts, and secondly using an interstate telephone call or electronic communication in furtherance of the scheme. DOJ Manual for criminal prosecution.

You are thinking of the CFAA which is not the statute the Chiu's are charged with violating. Wish you would quit with your ridiculous rabbit trails that go nowhere.

I love how you seem to use "to defraud" in a way that could be interchangeably replaced with "to profit from" because if the only test as to whether something is fraud or not is based on how much money you made from it then you might as well just call it what it is and that is a 'catch all' that can be used on all cases. If you claim that it isn't the same thing than how about you define fraud for me, and then explain how the presence or lack their of, of contract terms denoting appropriate use of a program is irrelevant. Or is it your conclusion that the mere presence of a company saying after the fact that this wasn't intended to be used as such all the evidence that is needed?

mikef07 said:   His opinion is that they likely knew about this 12+ months ago. Even though the alleged crime didnt occur until September 2011? And Nordstroms continued voluntarily crediting and posting CashBack for months after that?

If the Feds knew about it over a year ago, so did Nordstroms, yet they continued to willingly pay the CashBack - meaning paying out the money was in fact not an error. Wouldnt it be some form of entrapment (using a layman's term, I dont know what it'd technically be called) for them to say "Here, your entitled to this money" while planning to charge fraud if it is accepted?

Mike, don't you work as a consultant to doctors to maximize payments from insurance carriers for procedures. Say these insurance carriers get an idea that what you do is illegal, whether they argue that you are making clinical decisions without a license or that creative billing is indeed fraud even though over the past few years they have been making payments to doctors. You do not have an issue with the carriers going to the AG/FBI instead of using the civil courts to try and recover any alleged improper payments to you / your company.

Thanks for the interesting take Mike.

FWIW, I agree with much of it. Ms DH investigates financial crimes for a living, and would confirm that Feds build a case methodically and without the time/resource constraints that (e.g.) a traffic court faces.

He's also right that the lawyers in question must be privvy to many details we simply do not know. We need to be appropriately humble about that. For much the same reason tho, it's overly simplistic for anyone on the outside (including him) to simply assert, "it's fraud, period." He's on stronger ground when he opines that it's "probably" a crime. (Which I don't disagree with, FWIW...I just don't think the facts as we see them offer strong grounds for persuing a criminal wire fraud case as opposed to a civil unjust enrichment action of some kind.)

Did you ask him about why they'd opt to persue something like this criminally rather than civilly?

mikef07 said:   
One thing for sure is that it is an interesting case and I will say that many posters have made me think about things I never thought I would have to think about.
I think we all agree about this. And I appreciate the healthy discussion that (mostly) hasn't degraded to hurling personal insults.

DaveHanson said:   Thanks for the interesting take Mike.

FWIW, I agree with much of it. Ms DH investigates financial crimes for a living, and would confirm that Feds build a case methodically and without the time/resource constraints that (e.g.) a traffic court faces.

He's also right that the lawyers in question must be privvy to many details we simply do not know. We need to be appropriately humble about that. For much the same reason tho, it's overly simplistic for anyone on the outside (including him) to simply assert, "it's fraud, period." He's on stronger ground when he opines that it's "probably" a crime. (Which I don't disagree with, FWIW...I just don't think the facts as we see them offer strong grounds for persuing a criminal wire fraud case as opposed to a civil unjust enrichment action of some kind.)

Did you ask him about why they'd opt to persue something like this criminally rather than civilly?

The traffic court example was not a comparison of the seriousness and investigative time and skills of Fed vs Municipal, it was an example of people pleading guilty does not always mean they are guilty of what they have plead guilty too as Mike keeps on saying is an unequivocal admission that they committed the crime that has been charged. Mike's lawyer family member's statement supports the fact that others have been saying as the Feds probably had a pretty strong case with regards to much more serious charges and let them plead down.

mikef07 said:   dhl said:   DaveHanson said:   Thanks for the interesting take Mike.

FWIW, I agree with much of it. Ms DH investigates financial crimes for a living, and would confirm that Feds build a case methodically and without the time/resource constraints that (e.g.) a traffic court faces.

He's also right that the lawyers in question must be privvy to many details we simply do not know. We need to be appropriately humble about that. For much the same reason tho, it's overly simplistic for anyone on the outside (including him) to simply assert, "it's fraud, period." He's on stronger ground when he opines that it's "probably" a crime. (Which I don't disagree with, FWIW...I just don't think the facts as we see them offer strong grounds for persuing a criminal wire fraud case as opposed to a civil unjust enrichment action of some kind.)

Did you ask him about why they'd opt to persue something like this criminally rather than civilly?

The traffic court example was not a comparison of the seriousness and investigative time and skills of Fed vs Municipal, it was an example of people pleading guilty does not always mean they are guilty of what they have plead guilty too as Mike keeps on saying is an unequivocal admission that they committed the crime that has been charged. Mike's lawyer family member's statement supports the fact that others have been saying as the Feds probably had a pretty strong case with regards to much more serious charges and let them plead down.

That they committed "a" crime.

If you read all my statements I support the fact that they committed several crimes.

mikef07 said:   dhl said:   mikef07 said:   dhl said:   DaveHanson said:   Thanks for the interesting take Mike.

FWIW, I agree with much of it. Ms DH investigates financial crimes for a living, and would confirm that Feds build a case methodically and without the time/resource constraints that (e.g.) a traffic court faces.

He's also right that the lawyers in question must be privvy to many details we simply do not know. We need to be appropriately humble about that. For much the same reason tho, it's overly simplistic for anyone on the outside (including him) to simply assert, "it's fraud, period." He's on stronger ground when he opines that it's "probably" a crime. (Which I don't disagree with, FWIW...I just don't think the facts as we see them offer strong grounds for persuing a criminal wire fraud case as opposed to a civil unjust enrichment action of some kind.)

Did you ask him about why they'd opt to persue something like this criminally rather than civilly?

The traffic court example was not a comparison of the seriousness and investigative time and skills of Fed vs Municipal, it was an example of people pleading guilty does not always mean they are guilty of what they have plead guilty too as Mike keeps on saying is an unequivocal admission that they committed the crime that has been charged. Mike's lawyer family member's statement supports the fact that others have been saying as the Feds probably had a pretty strong case with regards to much more serious charges and let them plead down.

That they committed "a" crime.

If you read all my statements I support the fact that they committed several crimes.

If you read the facts the brothers support the fact that they committed the crime of wire fraud.

Why because they plead guilty? Refer to statement in the middle of the quote... circular logic.

dhl said:   mikef07 said:   dhl said:   mikef07 said:   dhl said:   DaveHanson said:   Thanks for the interesting take Mike.

FWIW, I agree with much of it. Ms DH investigates financial crimes for a living, and would confirm that Feds build a case methodically and without the time/resource constraints that (e.g.) a traffic court faces.

He's also right that the lawyers in question must be privvy to many details we simply do not know. We need to be appropriately humble about that. For much the same reason tho, it's overly simplistic for anyone on the outside (including him) to simply assert, "it's fraud, period." He's on stronger ground when he opines that it's "probably" a crime. (Which I don't disagree with, FWIW...I just don't think the facts as we see them offer strong grounds for persuing a criminal wire fraud case as opposed to a civil unjust enrichment action of some kind.)

Did you ask him about why they'd opt to persue something like this criminally rather than civilly?

The traffic court example was not a comparison of the seriousness and investigative time and skills of Fed vs Municipal, it was an example of people pleading guilty does not always mean they are guilty of what they have plead guilty too as Mike keeps on saying is an unequivocal admission that they committed the crime that has been charged. Mike's lawyer family member's statement supports the fact that others have been saying as the Feds probably had a pretty strong case with regards to much more serious charges and let them plead down.

That they committed "a" crime.

If you read all my statements I support the fact that they committed several crimes.

If you read the facts the brothers support the fact that they committed the crime of wire fraud.

Why because they plead guilty? Refer to statement in the middle of the quote... circular logic.

No actual logic. And when a judge asks them if they committed the crime of wire fraud they will say yes. Keep reaching though. As I pointed out someone with far more knowledge than you and me pointed out to me that the feds don't need to offer a charge that didn't occur. They probably offered the lesser of most of the serious charges as a gift to get it off the docket. Either way IMO they would have no problem whatsoever proving wire fraud occurred.

In the illegal parking ticket it literally would have been impossible to prove that you illegally parked at the moment you were cited. It is my opinion that in this case it would have easily been proven that wire fraud was committed based on what I know now about federal court. They don't need to offer a made up crime. They likely already built their case. What they might do (in this case) is offer a plea of some of the lesser crimes that occurred. Either way they ain't worried. If the brothers change their plea they will gladly prove this case in court, just like they do a high high % of the time in federal court. If it is your belief that their case was so weak that they were worried they might lose and had to offer "made up" crimes to get a guilty plea that certainly is your right.

dhl said:   http://www.ca3.uscourts.gov/opinarch/102489p.pdf Not guilty. Even when they have these guys on video... The Feds did tons fo investigating and falsey charged the inviduals. Just as your family member said, it is not an open and shut case in regards to the wire fraud as you apparently feel it is.

Doesnt change this:

It is my opinion that in this case it would have easily been proven that wire fraud was committed based on what I know now about federal court. They don't need to offer a made up crime. They likely already built their case. What they might do (in this case) is offer a plea of some of the lesser crimes that occurred. Either way they ain't worried. If the brothers change their plea they will gladly prove this case in court, just like they do a high high % of the time in federal court. If it is your belief that their case was so weak that they were worried they might lose and had to offer "made up" crimes to get a guilty plea that certainly is your right.

As for open and shut that is opinion - both yours and mine and those 2 differ. I can live with that. I think they have a slam dunk, you don't. Neither of us will never know. Neither of us can prove how tight (or loose) their case is. What is irrefutable is that once the brothers plead guilty of wire fraud they are guilty of wire fraud (in the eyes of the law which is all that matters).

dhl said:   http://www.ca3.uscourts.gov/opinarch/102489p.pdf Not guilty. Even when they have these guys on video... The Feds did tons fo investigating and falsey charged the inviduals. Just as your family member said, it is not an open and shut case in regards to the wire fraud as you apparently feel it is.
The Feds were overreaching in that case, trying to charge an aspiring politician for selling corrupt promises contingent on his election even though he was never actually elected. The law in question only applies to those acting in official capacities.

Not a bad gig as an aspiring politician though - get $50k or so of taxpayer money for making some promises you don't have to keep. I wonder if they would have still gotten off if they won the election and then refused to follow through on their promises or take the subsequent bribes? Surely not keeping your promises is par for the course among politicians.

mikef07 said:   . And when a judge asks them if they committed the crime of wire fraud they will say yes.
That just means the prosecutor "convinced" them to accept the accusations, likely using other leverage as incentive. It doesn't mean the legal system has validated this as being a crime. In fact, it could be as simple as them not being able to (sucessfully) defend themselves against this charge without implicating themselves some other charges - so it made sense to just accept the prosecutor's accusations rather than dig a deeper hole.

Seems to me Mike that you and Glitch are no longer far apart in your assessment of what happened based on the incomplete records we have:

-The Feds gathered considerable leverage on the Chius of an unknown but serious nature.
-They offered to have the Chius plead guilty for wire fraud in lieu of throwing their leverage (of whatever nature) at them.
-The Chius, with advise of counsel, agreed to take that offer.

This could all be true whether or not they could be reasonably held to have comittted acts fairly described as criminal wire fraud as a matter of fact. Of course you are correct that having entered the plea, they are guilty of said crime as a matter of law.

xerty said:   dhl said:   http://www.ca3.uscourts.gov/opinarch/102489p.pdf Not guilty. Even when they have these guys on video... The Feds did tons fo investigating and falsey charged the inviduals. Just as your family member said, it is not an open and shut case in regards to the wire fraud as you apparently feel it is.
The Feds were overreaching in that case, trying to charge an aspiring politician for selling corrupt promises contingent on his election even though he was never actually elected. The law in question only applies to those acting in official capacities.

Not a bad gig as an aspiring politician though - get $50k or so of taxpayer money for making some promises you don't have to keep. I wonder if they would have still gotten off if they won the election and then refused to follow through on their promises or take the subsequent bribes? Surely not keeping your promises is par for the course among politicians.

This case is pretty well known in the Federal Defense Bar. The 3rd Circuit said you actually have to "hold" office at the time of the offense to be held accountable under the Hobbs Act. In this case Louis Manzo was a CANDIDATE for mayor not holding an elected position at the time of the conspiracy. Manzo subsequently lost the election. so he did not hold a position of public trust a key element of the Hobbs Act. If he had won and then taken overt action in furtherance of the conspiracy, the whole history counts. That is the Edwin Edwards case out of Louisiana.

nsdp said:    If he had won and then taken overt action in furtherance of the conspiracy, the whole history counts. Is the "taken overt action in furtherance" required? Could someone accept bribes, but never fulfill his end of the bargain and remain in the clear? Completely irrelevant to this thread, just curious.

Glitch99 said:   nsdp said:    If he had won and then taken overt action in furtherance of the conspiracy, the whole history counts. Is the "taken overt action in furtherance" required? Could someone accept bribes, but never fulfill his end of the bargain and remain in the clear? Completely irrelevant to this thread, just curious.

That is the takeaway from the Edwin Edwards case. Earl Long walked because he didn't do anything while governor but he sure took money before and afterwards. Other people did th dirty work because they knew what would please Gov. Long.

BlueEyesAustinTexas said:   DaveHanson said:   
This could all be true whether or not they could be reasonably held to have comittted acts fairly described as criminal wire fraud as a matter of fact. Of course you are correct that having entered the plea, they are guilty of said crime as a matter of law.

That's not quite right. The judge isn't going to accept a plea if there isn't a reasonable holding the crime was committed was classifiable as criminal wire fraud. Sure it is. The plea pre-empts a trial (whether jury or bench), so the judge isn't in a position to know whether or not the holding is a fair characterization of what occoured. If both sides agree to the plea, the judge isn't going to scrutinize the factual basis unless given a specific reason to do so.