Civil Practice: Woodchips Are Real Estate, So School Could Be Liable for Injury

A school district is facing potential liability for injuries a sixth-grade girl suffered on a school playground because a Monroe County judge ruled the layer of woodchips covering the playground qualified as the school's real estate.

Civil Practice: Auto Dealer Held Personally Liable for Selling 'Stolen' Car

A car dealer may be held personally liable for selling an allegedly stolen vehicle, an Allegheny County Court of Common Pleas judge has ruled.

DealBook: JPMorgan Reveals It Faces Criminal and Civil Inquiries

Civil Behavior: What Is the Right Way to Come Out as Bisexual at Work?

Q. Dear Civil Behavior: I’m bisexual (female), and I want to be out at work. I just don’t quite know how to slip it into conversation. It never seems appropriate to say the word “sexual” in a work environment, and it’s simply awkward. If I come out to a straight man, for example, he always seems to take it in a sexual way. Coming out to women I just get scared that they will be uncomfortable or think I’m coming on to them. Also it gets really wordy! I have to spend sentences explaining who I am while someone that is gay can use a single word or two. But, bisexual visibility can only get better if people like me don’t cop out and say we are gay when that’s not true. Any advice on how to make “out bisexual” a little easier? — Erica, East Brunswick, N.J.

A: Over the years I’ve frequently heard from my bi friends that it’s harder for them to come out than it is for those of us who are gay or lesbian because of the enduring myths about being bisexual. Stereotypes persist, and many people think that identifying as bi means 1) you’re going through a phase, 2) you’re promiscuous or 3) you’re really gay but not telling the truth. In fact, many of those in our generation of L.G.B.T. people did claim to be bisexual, when we were gay or lesbian all along but not yet ready to acknowledge it even to ourselves. That’s not deceitful; it’s part of coming to terms with your sexuality.

For those who are bi, though, I can certainly understand the difficulty in establishing your identity in a simple and honest way. “Bisexuality, arguably, is the least understood sexual orientation,” said Bob Witeck, a founder of one of America’s pioneering L.G.B.T. communications and marketing companies. “And invisible too, given their closets, and the sometimes harsh attitudes of gay and straight counterparts.”

After all, people our age are likely to associate being bi with either Sharon Stone as the murderous bisexual seductress Catherine Tramell in the 1992 film “Basic Instinct” or the flippant Woody Allen joke about how being bi “doubles your chance for a date on Saturday night.” These old stereotypes don’t die easily.

They are so alive and well, in fact, that when I posed your question on my Facebook page I was shocked by some of the venomous responses. It was the first time any topic has caused the Facebook algorithm to hide posts because of the language, and I’ve had to edit the remarks heavily to let even these few appear here:

¶"Life must be so tough on you wishy-washy [expletive deleted]”

¶"I’ve seen more damage done by ‘bisexuals’ that I care to count”

¶"Probably married and sleeping around”

I’d have a hard time coming out, too, if I thought seemingly reasonable people harbored opinions like these.

Still, you’re absolutely correct: If more bi folks come out of course visibility increases. But is work the right place to do this? I can hear the chorus from those who argue that one’s sexual identity (whether straight, gay or bi) is not relevant in a work context. “Why make a declaration,” one Facebooker posted. Another, “It’s nobody’s business in business.”

Point taken, but without making a “declaration,” don’t our straight colleagues routinely discuss how they spent the weekend with their opposite-sex partner, which is a nonchalant way of proclaiming their sexual identity. In recent years, gays and lesbians have joined in, too, acknowledging a same-sex boyfriend or girlfriend by showcasing a desktop photo of the happy couple or dropping a casual reference.

I do think context is key here. If you are in a relationship with a woman and talk with colleagues about your weekend plans with her, then the assumption is that you’re lesbian. If your current partner is a man, they’ll assume you’re straight. In that case, to clarify things with a friendly colleague you could mention a past love, working a simple “I’m bi” or a humorous “I play for both teams” into the conversation (although a friend of mine notes that someone might want to add, “I only play for one team at a time.”)

Two bisexual activists, A.J. Walkley and Lauren Michelle Kinsey, also recommended casual “water cooler” ways of bringing up your sexual identity through current events. “I was thrilled to hear that Clive Davis came out as bisexual, being bisexual myself,” or “Did you hear that same-sex couples will soon be able to marry in Delaware? It means a lot to me since I’m bisexual.”

Context isn’t the only thing that matters here – consider your company and its commitment to diversity and inclusion as well. Many corporations now have L.G.B.T. employee groups; think about getting involved as an out bi person and use that public role to reduce the invisibility of bisexuals in the workplace.

But what’s true for boomers is much less so for millennials, who have grown up with less antipathy toward bi people and are more likely to have been influenced by the well-respected and much-loved bisexual character Dr. Calliope Torres on “Grey’s Anatomy” (who’s had monogamous relationships with male and female characters) than “Basic Instinct.” This younger generation is also generally more accepting of the concept of fluid or pan sexuality, and less likely to use traditional labels to define themselves. Just this week I was told that college-age students are eschewing “lesbian” as “old school” and that the day is fast approaching when “bisexual” will also be considered obsolete. As one young man, who has had intimate relationships with men and women, e-mailed me: “I don’t need to identify. I just am. Me.”

Finally, whether you call yourself bi, fluid, queer or something else, don’t get bogged down in the verbiage; choose instead to embrace your life as it is. I’ve always liked this quote from James Dean who, when asked about his rumored bisexuality, responded: “I’m not willing to go through life with one hand tied behind my back.”

Do you think there’s more antipathy toward bisexual people than gays or lesbians? Why?

Previous “Civil Behavior” columns can be found here. Steven Petrow can be contacted at Facebook.com/gaymanners and @stevenpetrow or his Web site www.gaymanners.com. If you need advice about gay/straight situations or issues (geared to a boomer-aged audience), send them to Mr. Petrow at stevenpetrow@earthlink.net. (Unfortunately, not all questions can be answered.)

Booming: Living Through the Middle Ages offers news and commentary about baby boomers, anchored by Michael Winerip. You can follow Booming via RSS here or visit nytimes.com/booming. You can reach us by e-mail at booming@nytimes.com.

U.S. Supreme Court Limits SEC's Time to Seek Civil Penalties

In seeking civil penalties for fraud, the U.S. Securities and Exchange Commission must bring an enforcement action within five years of the alleged misconduct, a unanimous U.S. Supreme Court ruled on Wednesday.

Appeals: High Court Could Hear Key Civil Issues in 2013

Last year, by many accounts, was the year of the political blockbuster for the Pennsylvania Supreme Court, which presided over cases on the legislative reapportionment process and the state's controversial voter ID law.

DealBook: Looking Ahead to Civil and Criminal Cases to Come

Carl Court/Agence France-Presse — Getty ImagesInvestigators are said to be looking into the actions of four people who previously worked for JPMorgan Chase in London.

It is not really of question of whether there will be a major white-collar crime that captures the public’s attention in 2013; it’s a question of when and how costly it will be.

If the cases of 2012 can serve as a guide, too many loopholes in the system allow fraud to go undetected.

Take for instance the onetime futures trading firm PFGBest, whose founder confessed to having committed fraud for years at the company, which has about $200 million missing from its accounts. Though futures regulators have spent months wringing their hands on how such a fraud could have gone on for so long, the fact remains that some financiers may keep one step ahead of law enforcement when it comes to white-collar crimes.

Federal prosecutors, however, are likely to remain strongly focused on the insider trading cases. The United States attorney’s office in Manhattan has already racked up an impressive record of winning convictions in every insider trading case that went to trial. They are even winning cases the old-fashioned way by relying primarily on the testimony of cooperating witnesses.

The one black eye that remains for the government is the lack of signature prosecutions emerging from the near collapse of the financial system in 2008. Although the Justice Department and the New York attorney general, Eric T. Schneiderman, have filed civil cases seeking billions in recovery for the sale of questionable securities tied to toxic subprime mortgages, the cases are likely to take years to play out.

Looking ahead to 2013, several major investigations remain open and are likely to bring significant criminal or civil penalties:

Still More to Come on Libor

The investigation of manipulation of the London interbank offered rate, or Libor, had been moving quietly along until the British bank Barclays announced a $450 million settlement in June 2012. The subsequent firestorm in Parliament over the bank’s conduct led to the resignation of its chief executive, Robert E. Diamond Jr., and a push to shift control of the interest rate mechanism into more trustworthy hands.

In hindsight, Barclays got off easily as the first bank to reach a settlement, although it probably did not feel like it in the days after the announcement. UBS has become the new focus of attention for Libor manipulation; it recently paid a $1.5 billion settlement, and its Japanese subsidiary pleaded guilty to fraud.
Other banks caught up in the investigation have to be dreading whether the UBS settlement is the new benchmark. If so, then a billion dollars may be the starting point for any negotiations with the Justice Department and Commodity Futures Trading Commission, which have been leading the investigation in this country. Add to that any penalties assessed by foreign regulators, and the cost of resolving the investigation will be a significant hit to the bottom line of some global banks.

More ominous is the possibility that the Justice Department will demand guilty pleas from banks. That requires an acknowledgement of wrongdoing, which could prove to be useful in the numerous civil lawsuits that have been filed against the banks, meaning more money could be paid out to resolve those cases.

Tackling Bribery and Corruption

As The New York Times has detailed, Wal-Mart is dealing with significant corruption issues in its Mexican subsidiary. The company also acknowledged that it was reviewing its global operations, and had already spent nearly $100 million on its internal investigation.

Though the Foreign Corrupt Practices Act was enacted in 1977, only in the past few years have the Justice Department and Securities and Exchange Commission started to extract significant penalties, often in sectors that had not previously been involved in overseas bribery cases.

For example, among the settlements in 2012 included four companies in the medical field, which all paid significant penalties: Smith & Nephew, $22 million; Biomet, $22.8 million; Pfizer, $60 million; and Eli Lilly, $29 million.

As more companies get caught up in these investigations, it will be interesting to see whether the courts punish repeat offenders more harshly. For instance, I.B.M. reached settlements with the S.E.C. in 2000 and again in 2011 over violations of the Foreign Corrupt Practices Act. A federal district judge in Washington is demanding greater accountability from the company before he will approve the proposed resolution of the case.

Insider Trading in the Cross Hairs

Although insider trading cases have become a staple of federal action in the last three years, the new attention has been on Steven A. Cohen and his hedge fund firm, SAC Capital.

Louis Lanzano/Associated PressThe government has indicted the portfolio manager Mathew Martoma, who worked at SAC Capital.

Prosecutors have charged a number of defendants with ties to SAC, and came close to Mr. Cohen in the insider trading indictment of the portfolio manager Mathew Martoma, Although Mr. Cohen is not named in the charges, prosecutors went out of their way to describe the “Hedge Fund Owner” as someone involved in the trading at issue, a sure sign the government is focusing on him.

Mr. Martoma’s lawyer said his client was innocent, which probably means that he will not cooperate with the government if it pursues a case against Mr. Cohen. Without that path to build a case, an interesting question is whether the S.E.C. will use its authority to hold SAC responsible as a “controlling person” for insider trading by its employees, which could result in a triple penalty being imposed. The firm received a so-called Wells notice stating that the agency is considering civil charges.

If the S.E.C. files such a case, this would be a new front in the fight over insider trading that shifts attention to the hedge funds and investment firms that employ the people who capitalized on confidential information. That could potentially expose firms to enormous liability even if their managers were not specifically aware of any legal violations.

Rogue Traders

Every year seems to bring news of a major trading loss as a result of a breakdown in the internal controls at a major financial institution. In 2011, UBS revealed that actions by Kweku Adoboli, a trader in London, cost the bank about $2.3 billion. In 2012, JPMorgan Chase said that a hedging strategy by traders in London had cost the bank at least $6 billion in losses.

On a smaller scale, the boutique brokerage firm Rochdale Securities suffered a $5 million loss when a trader bought about $1 billion in Apple shares, far beyond what he was permitted to do.

Although many of the outsize losses hurt banks’ shareholders rather than the general public, such actions have drawn public calls for accountability.

Prosecutors in London successfully obtained a conviction against Mr. Adoboli this year, and UBS was fined $47.5 million over failing to prevent the actions.

Olivia Harris/ReutersProsecutors in London successfully obtained a conviction against Kweku Adoboli, a former UBS trader in London.

More cases like these are likely to play out. As DealBook reported in October, investigators are looking into the actions of four people who previously worked for JPMorgan in London.

The nature of the markets may allow for more such blowups. Lightning-fast electronic trading allows huge positions to be built up in minutes, heightening the risk of sizable losses if anything goes awry.

And even when there is no sign of intentional wrongdoing, a small error can easily affect global markets. A software glitch at Knight Capital ended up costing the firm about $460 million, while memories of the 2010 “flash crash” are still fresh.

As the new year comes, white-collar cases will continue to serve up new object lessons of the perils and the pitfalls of the financial system. Some will come as a result of creative maneuverings by financiers, and some may call into question whether regulators are effectively overseeing the markets.

Civil Rights Advocate's Disadvantaged Childhood Spurs Her Into Action

Kristen Clarke
NYLJ/Rick Kopstein

Kristen Clarke parlayed a childhood in crime-ridden East Brooklyn into a career as a civil rights lawyer and commentator on issues of race, law and democracy. As chief of the New York attorney general's Civil Rights Bureau, a position she assumed a year ago, Clarke promotes civil rights enforcement with an arsenal of New York's robust anti-discrimination laws.

Previously, Clarke was an attorney with the civil rights division of the U.S. Department of Justice and co-director of the Political Participation Group at the NAACP Legal Defense and Education Fund. She was part of the NAACP litigation team that successfully defended the Voting Rights Act in Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193 (2009). Another voting rights case she argued at the trial level, Shelby County, Alabama v. Holder, is headed to the U.S. Supreme Court.

A graduate of Harvard University and Columbia Law School, the 38-year-old Clarke was honored in 2011 by the National Bar Association as one of the "Nation's Best Advocates: 40 Lawyers Under 40." She has also written extensively on civil rights issues. Her recent books include Barack Obama and African American Empowerment: The Rise of Black America's New Leadership and Seeking Higher Ground: The Hurricane Katrina Crisis, Race and Public Policy Reader, both edited with the late Manning Marable, a leading black history scholar and Pulitzer Prize winner.

Her salary at the attorney general's office is $140,000.

Q: You have spent virtually your entire career advocating for civil rights. What drove you to this area of the law?

A: My experience growing up in the East New York section of Brooklyn played a large role in my decision to pursue a career in civil rights. This is a section of Brooklyn that is racially isolated and one with some of the highest poverty, crime and unemployment rates in the city. Although I have had the benefit of attending exceptional schools, I know that there are far too many who have not had access to equal educational opportunities.

I have profound respect for the work of civil rights lawyers and advocates such as Thurgood Marshall and Charles Hamilton Houston and Constance Baker Motley. Through seminal cases such as Brown v. Board of Education, they used the law as a vehicle to promote integration and as a tool to close some of the stark racial gaps that we face. I chose this path recognizing that their work is not yet done and that the progress we have achieved remains fragile.

Q: Have you personally experienced discrimination?

A: I grew up in a community called Starrett City, one of the largest housing developments in the country. Starrett City was the subject of litigation under the Fair Housing Act. For years, the complex maintained a system of racial quotas -- white prospective tenants could walk in and easily rent an apartment while black and Latino prospective tenants often faced a wait list. Starrett City defended its quota system by arguing that its purpose was to maintain a certain racial balance in the apartments, but a group of minority litigants defeated the policy by bringing a successful claim under the Fair Housing Act.

My experience in Starrett City reminds me that tackling racial segregation and isolation are incredibly complex challenges with no easy solutions but precisely the kind of problems that we need to tackle head on.

Q: How has the definition of discrimination changed? Which are the groups most at risk today?

A: Discrimination has definitely become more sophisticated in form though its impact remains the same. The challenge today is figuring out how to ensure that civil rights enforcement remains tailored to dealing with the new barriers and challenges that we face today.

For example, our state and our country are continuing to grapple with the effects of the mortgage foreclosure crisis, the overall economic downturn and high rates of unemployment. We are now seeing many employers using credit history reports as tools to evaluate job candidates. We are seeing other employers who refuse to hire job candidates who are currently unemployed. These kinds of hiring practices may be ones that have a greater impact on African-Americans, Latinos, women, the elderly and other minority groups.

The challenge is making sure that we remain focused on combating discrimination in whatever shape it rears its ugly head.

Marriage equality in New York certainly stands as a landmark achievement and we must work to ensure that same-sex couples are treated equally and fairly. We have a number of veterans and military personnel who are increasingly the targets of predatory schemes. New immigrants to our state are far too often subject to fraud and reluctant to seek the assistance of law enforcement.

Q: What does the Attorney General's Civil Rights Bureau do?

A: The Civil Rights Bureau is an engine of aggressive civil rights enforcement. The attorneys within the bureau are among the brightest and most dedicated advocates that I have had the chance to work with.

We review the complaints that come to us with a fine-tooth comb and we meet and hear from advocates about the problems that they are facing. We are proactive in our approach and frequently launch new initiatives to tackle stubborn areas of discrimination. We work to fight employment and housing discrimination, combat immigration fraud and predatory practices aimed at minority groups, and work to promote equal educational opportunity and full access to the ballot box. Sometimes achieving real results means taking a stance that is unpopular and we have an attorney general who is not afraid to do that.

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Former AUSA Returns to Head Northern District of California Civil Division

A veteran of the U.S. Attorney's Office in San Francisco has returned to federal government as the new chief of civil litigation.

Alex Tse, until recently a deputy city attorney for San Francisco, steps into the role long held by Joann Swanson, who retired September 28 after three decades in the U.S. Attorney's Office.

Tse joined the city attorney's office in 2007 and served as chief of neighborhood and resident safety. In 2010 he led a legal action to stop a guerilla marketing campaign on behalf of the online gaming company Zynga Inc. that left thousands of fake $25,000 bills glued to city sidewalks.

He previously spent 12 years as an Assistant U.S. Attorney and served as Swanson's deputy from 2001 to 2006. After graduating from UC-Hastings law school, Tse worked as an associate at the firm then known as Thelen, Marrin, Johnson & Bridges and then at Sheppard, Mullin, Richter & Hampton.

U.S. Attorney Melinda Haag, who got to know Tse when both were line attorneys in the office, said she is "delighted" with his return.

"If I had to lose my civil chief, who has done such a tremendous job, I feel fortunate that Alex was available to come back," Haag said.

Tse did not return a call seeking comment.

Ironically, a recent civil win for Swanson's division came in litigation against Tse's former office over postal delivery service to the city's single-room-occupancy hotels.

The San Francisco city attorney's office and tenants' rights groups sued the postal service to require delivery to individual mailboxes in the hotels, which serve as residences to many poor and disabled people. A federal judge dismissed the action last year.

Haag called the Northern District of California a popular venue for claims against the federal government and said Tse's caseload would be "interesting and varied."

She added: "The Civil Division here doesn't always get the attention that the Criminal Division does, but folks in our Civil Division do incredibly important work."