Investigation underway in Navajo Nation Toxic Spill

Last month, the Navajo Nation demanded the federal government pay $162 million to cover damages caused by the Gold King Mine spill. Citing the Federal Tort Claims Act, the nation said the toxic spill turned the San Juan River sickly orange color and continues to disrupt ranchers and farmers in the Native American nation. The toxic spill is believed to contain heavy metals, including arsenic, mercury and lead.

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Private investigators are often called upon in these cases to document the damages via extensive witness interviews as well as determine causation. Environmental cases are massive undertakings, with fact-gathering requiring the identification of witnesses at multiple properties over the course of decades. The spill is just the latest affront to the burgeoning Native American environmental movement.

“The spill disrupted the Navajo Nation’s economy and damaged the people and environment in numerous ways,” the nation said in the claim letter. “It fundamentally altered economic, cultural, ceremonial and spiritual practices that support the Navajo way of life.”

The EPA allegedly had documented signs of trouble for many years, but did nothing to prevent the blowout.

Supreme Court Affirms: Client Michael O'Laughlin Is A Free Man

Yesterday, the U.S. Supreme Court denied a petition for a writ of certoriari filed by the Commonwealth, thus letting stand the order by the First Circuit Court of Appeals freeing client Michael O'Laughlin and affirming his innocence.

Thus ends Michael's nine year odyssey of imprisonment.

Your lawyer: trial lawyer or settlement artist?

One of the little truths that come to light as you go along in this business is that some lawyers never learn how to take a case to trial. I once sat in a meeting in California with a group of lawyers on joint defense case. Several big names; several big egos (the lawyers, not me). As we began, one lawyer, whose website bragged about extensive experience litigating major civil and white collar criminal cases, looked uncomfortable as the discussion proceeded --which witnesses were being contacted, what impeachment material was developing, etc. It became clear that this lawyer had done little pretrial investigation. He rarely did--the concept of a PI systematically interviewing witnesses was new to him. Rather stunning. The guy was all hat, no cattle.

Clients don't just want an attorney with a law degree; they deserve a intelligent street fighter, a trial lawyer who aggressively develops the facts of a case. Ask your lawyer what he does before trial. Those tasks have more to do with winning than his courtroom maneuvering.

Trader sues after being fired for relationship with Ponzi schemer Nicholson

Lindy Boville, a former trader, has sued RBC Capital Markets for gender bias over her firing, which she said stemmed from her dating a hedge fund manager later charged with fraud for running a Ponzi scheme. Boville accused RBC of using her relationship with James Nicholson as a pretext to fire her in March 2009 and assign her accounts to male workers, RBC spokesman Kevin Foster denied those allegations: "Ms. Boville showed poor judgment in helping Jim Nicholson raise money for his hedge fund and failing to disclose her activities to her supervisors. It is irrelevant that she had a personal relationship with Nicholson, and she should have told RBC what she was doing."

Nardizzi & Associates had warned an investment banking client in 2007 that something was amiss with Nicholson and his Westgate Capital firm. A grand jury in April indicted him for a scheme that caused $150 million of losses.

Privacy, surveillance & civil litigation: a Massachusetts guide for private investigators

The Massachusetts Bar Association hosts a good summary of privacy laws as they apply to video surveillance in Massachusetts civil litigation, including insurance cases. One of the leading cases in Mass. is DiGirolamo v. D.P. Anderson & Associates, Inc., The court wrote that investigators may generally observe, or photograph a person in public places. A gray area arises when a person enters the privacy of their own home. The court looked at 4 scenarios as to whether a private investigator violates a person's statutory right to privacy:

~ the investigator looks through a window into an apartment with the naked eye;

~ the investigator looks with the naked eye when a person walks out onto a balcony;

~ the investigator photographs, or looks at the person on a balcony with enhanced vision;

~ the investigator photographs or looks at a person inside the home with enhanced vision.
 
The Mass. court concluded that only the fourth scenario would constitute an unreasonable and substantial interference with the plaintiff’s right to privacy.

The court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States. It also quoted a Second Circuit Court of Appeals’ case United States v. Taborda: “Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”

Written by lawyers Joseph M. Desmond & David Viens, this article has some good information on Massachusetts state laws applicable to video surveillance, audio recordings, pretext interviews and pretrial discovery.

Privacy, surveillance & civil litigation: a Massachusetts guide for private investigators

The Massachusetts Bar Association hosts a good summary of privacy laws as they apply to video surveillance in Massachusetts civil litigation, including insurance cases. One of the leading cases in Mass. is DiGirolamo v. D.P. Anderson & Associates, Inc., The court wrote that investigators may generally observe, or photograph a person in public places. A gray area arises when a person enters the privacy of their own home. The court looked at 4 scenarios as to whether a private investigator violates a person's statutory right to privacy:

~ the investigator looks through a window into an apartment with the naked eye;

~ the investigator looks with the naked eye when a person walks out onto a balcony;

~ the investigator photographs, or looks at the person on a balcony with enhanced vision;

~ the investigator photographs or looks at a person inside the home with enhanced vision.
 
The Mass. court concluded that only the fourth scenario would constitute an unreasonable and substantial interference with the plaintiff’s right to privacy.

The court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States. It also quoted a Second Circuit Court of Appeals’ case United States v. Taborda: “Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”

Written by lawyers Joseph M. Desmond & David Viens, this article has some good information on Massachusetts state laws applicable to video surveillance, audio recordings, pretext interviews and pretrial discovery.

RIAA piracy case appealed; was evidence obtained by unlicensed investigator?

The only illegal downloading case to go to a jury trial was appealed. Jammie Thomas-Rasset implored the judge to overturn the $1.9 million verdict, which she called "excessive, shocking and monstrous." In their motion, Thomas-Rasset's laers argued that much of the evidence used against her had been improperly collected by Media Sentry Inc, working on behalf of the Recording Industry Association of America (RIAA). They argued that the evidence gathered by Media Sentry should have been suppressed because the company did not own a private investigator's license.

Legality of GPS tracking

A Hingham incident shows how those who use (or misuse) GPS tracking systems can face civil and criminal prosecution. General rule is that the owner (or joint owners) of the vehicle can install a GPS tracking system. Anyone else may face an invasion of privacy suit -- or worse. Case law continues to evolve here.

Kroll, USIS, OPM investigators charged with falsifying background checks

Washington Post reported that employees for Office of Personnel Management as well as subcontractors Kroll and USIS, which handle the background inquiries for more than 100 federal agencies, lied about interviews they never conducted and submitted false statements.
In the race to the low price swamp, it has long been suspected that some firms offer background checks at prices they cannot afford without cutting corners ( "national criminal check"' for $4.95 anyone?). A shabby product is the logical result.

Senator Stevens' conviction overturned

Boston Globe reports a federal judge tossed out the conviction of former US senator Ted Stevens after the Justice Department admitted its prosecutors mishandled evidence in the corruption case. Two prosecutors did not turn over notes from an interview in April 2008 with the case's key witness--notes that contained exculpatory evidence. Veteran defense investigators know this is a not uncommon phenomenon: several agents
from different agencies sit in on one interview, and their notes differ vastly from the "official report" that is eventually turned over to the defense. Always good practice to identify everyone at the meeting, and review notes from everyone present.

Prosecutors who handled the trial have been removed from the case and their conduct is under investigation.

Due diligence pays for Nardizzi client


In the wake of repeated news of SEC investigations of hedge fund and investment management firms, an investment bank credited an early-stage due diligence report by investigative firm Nardizzi & Assoc. for saving clients from multi-million dollar fraud losses.

The Securities and Exchange Commission charged a Pearl River, N.Y., investment management firm Westgate Capital Management, LLC and its managing member, James M. Nicholson with operating a large-scale scheme that defrauded hundreds of investors of millions of dollars. The SEC alleges that Westgate solicited investors with false claims of an almost unbroken eight-year string of monthly investment successes.

In the fall of 2007, a New York investment bank had retained Nardizzi & Assoc. to investigate links between Nicholson, Westgate, and other individuals. The report issued by Nardizzi swayed the investment bank away from investing with Nicholson.

The arrest of Nicholson made waves in tony Palm Beach as well, as reported in the Palm Beach Daily News:

“The vigilance of Madoff-wary investors has helped bring about the arrest of another part-time Palm Beach resident, the manager of an unregistered hedge fund accused of swindling an estimated $900 million from clients since 2004.

The FBI on Wednesday arrested James M. Nicholson, 42, owner of a penthouse in the Dunster House condominium complex, on charges of securities fraud and bank fraud. Also on Wednesday, the Securities and Exchange Commission filed a federal complaint against Nicholson and his company, Westgate Capital Management LLC of Pearl River, N.Y., seeking relief for the fraud and an injunction to stop it.

A telephone call to Nicholson's primary residence in Saddle River, N.J., was not returned by press time. A telephone line listed for Nicholson's multi-million dollar Dunster House penthouse was disconnected.”

The investigation into Nicholson began when Westgate investors reacted to alleged Ponzi mastermind Bernard Madoff's $50 billion scheme. When they began to redeem their own investments in different Westgate hedge funds, nearly $5 million in checks bounced.

The SEC released this statement regarding Westgate Capital Management, LLC and its managing member, James M. Nicholson, who was arrested by the FBI at his New Jersey home.