August
31 - September 1,
2010
FEDERAL
COURTS
DOJ Asks Judge to Stay
Injunction in Stem Cell Case
Mike
Scarcella, The National Law Journal
09-01-10 --
The Justice Department on Tuesday asked a federal judge in
Washington, D.C., to stay his ruling last month that blocks the
government from funding research that involves human embryonic
stem cells. . . . Last week, Chief Judge Royce Lamberth of the
U.S. District Court for the District of Columbia issued a
preliminary injunction that DOJ attorneys said Tuesday threatens
ongoing research projects and potentially negates years of
scientific progress toward treatment of certain illnesses. . . .
President Barack Obama in March 2009 removed restrictions on
embryonic stem cell research that were put in place by President
George W. Bush.
BofA
Shareholders' Key Claims in Merger Disclosure Class
Action Can Go Forward, Judge Rules
Andrew Longstreth, The American Lawyer
09-01-10 --
It may be that Bank of America caught a break in April when the
enormous securities class action challenging the bank's
disclosures in advance of its merger with Merrill Lynch was
transferred from Manhattan federal district court Judge Denny
Chin (who is now on the 2nd U.S. Circuit Court of Appeals) to
Judge Kevin Castel -- and not,
as we noted at the time,
to Judge Jed Rakoff, who had made life hell for the bank in its
attempt to resolve the Securities and Exchange Commission's suit
over the Merrill deal. . . . But Castel has turned out to be no
pushover for the bank's arguments. Far from it. On Friday, in a
comprehensive
140-page decision,
he green-lighted key claims by Bank of America shareholders in a
securities class action and a companion derivative suit.
Terror Suspect
Resentenced to Life for Brutal Attack on Guard
Mark
Hamblett, New York Law Journal
09-01-10 --
Terror suspect Mamdouh Mahmud Salim was ordered to serve life in
prison Tuesday for the brutal 2000 attack that permanently
disabled Corrections Officer Louis Pepe. . . . Southern District
of New York Judge Deborah A. Batts found Tuesday that a
terrorism enhancement under the U.S. Sentencing Guidelines
applied to Salim, who plunged a sharpened comb into Pepe's eye
in a cell at the Metropolitan Correctional Center on Nov. 1,
2000, in a bizarre plot to force a judge to assign him new
lawyers. . . . The enhancement and the longer sentence were the
result of a 2008 opinion by the 2nd U.S. Circuit Court of
Appeals in
United States v. Salim,
549 F.3d 67, which
vacated the initial 32-year
sentence Batts
gave Salim in 2004.
Antitrust
Plaintiffs Ask Federal Judge to Ground
United-Continental Merger
Ginny LaRoe, The Recorder
09-01-10 --
Antitrust attorney Joseph M. Alioto on Tuesday asked a federal
judge in San Francisco to do what he says government regulators
wouldn't and halt the pending merger of United and Continental
airlines. . . . The merger, recently green-lighted by the
Justice Department and the U.S. Department of Transportation,
could lead to higher fares and decreased services, Alioto, of
San Francisco's Alioto Law Firm, is arguing on behalf of 49
named plaintiffs.
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As State Immigration
Legislation Spreads, Ariz. Says Judge Misconstrued Law in Ruling
In the first six months of 2010,
every state in regular session considered laws related to
immigrants or immigration
Marcia Coyle, The National Law Journal
08-31-10 --
With the filing of Arizona's appellate brief in the legal battle
over state's controversial immigration law the ball now shifts
to the Obama Administration. . . . Arizona Gov. Jan Brewer late
last week lodged opening arguments in the 9th U.S. Circuit Court
of Appeals with her brief challenging the preliminary injunction
issued last month that prevented key portions of the law from
taking effect. . . . Also last week, in Nebraska, a federal
judge handling two challenges to an ordinance banning the
hiring, harboring or renting of private property to illegal
immigrants decided the Nebraska Supreme Court should be first to
rule on the ordinance adopted by the city of Fremont, Neb. The
ordinance is similar to one in Hazleton, Pa., that has been the
subject of recent litigation. That type of ordinance has been
introduced in other sections of the country as well.
Administrative
Law Judges Call for More Security
Jeff
Jeffrey, The National Law Journal
08-31-10 --
A federal administrative law judge said Monday that in the past
four years, there have been more than 200 threats, including
death threats, against ALJs and that there is not enough being
done to ensure that judges who hear administrative cases are
adequately protected. . . . D. Randall Frye, a North
Carolina-based ALJ with the Social Security Administration and
president of the
Association of Administrative
Law Judges, said,
"These aren't just the kind of 'I'll see you later' threats." As
an example, Frye pointed to an instance where a claimant
assaulted an ALJ with a chair, forcing her to take disability
retirement.
2nd Circuit
Upsets Fine Imposed in KPMG Tax Shelter Case
Mark
Hamblett, New York Law Journal
08-31-10 --
A judge's decision to impose a $6 million fine on a man
convicted in the KPMG tax shelter case was vacated by a federal
appeals court on Friday. . . . The 2nd U.S. Circuit Court of
Appeals said the fine levied against former investment
consultant John Larson was $3 million more than the amount set
by statute and could not have been imposed without a finding by
a jury that Larson caused the requisite amount of pecuniary
loss. . . . The decision was the latest in a series by the
circuit applying
Apprendi v. New Jersey,
530 U.S. 466 (2000), where the U.S. Supreme Court held that,
other "than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proven beyond
a reasonable doubt."
AIG Derivative
Suit Against Greenberg Settles for $90 Million
Victor Li, The American Lawyer
08-31-10 --
American International Group has finally closed the book on the
turbulent Maurice "Hank" Greenberg era. On Thursday the
embattled former chief executive officer and other defendants
agreed to settle a derivative suit alleging that they
fraudulently used various accounting tricks to mask problems at
the company. Under the deal, which must be approved by Vice
Chancellor Leo Strine Jr. of Delaware Chancery Court, AIG will
receive $90 million. At the same time, Greenberg and former AIG
Chief Financial Officer Howard Smith will be reimbursed $60
million for their legal fees. Both sums will be paid by AIG's
insurance carriers. . . . Greenberg's attorney, Lee Wolosky of
Boies, Schiller & Flexner,
said he was pleased with the settlement and pointed out that his
client isn't paying a cent. "Hank Greenberg is very glad to be
finished with all this litigation so he can return his full
efforts to his business and philanthropic pursuits," Wolosky
said.
Failure to Notify
Bankruptcy Court of Discrimination Suit Knocks Out
Damages
Shannon P. Duffy, The Legal Intelligencer
08-31-10 --
In a novel approach to applying the doctrine of judicial
estoppel, a federal judge has ruled that a plaintiff in a
pregnancy discrimination suit who failed to inform the
Bankruptcy Court of her pending discrimination claims must be
barred from seeking any compensatory damages in that case, but
should still be allowed to pursue declaratory and injunctive
relief. . . . In his 21-page opinion in
Hardee-Guerra v. Shire
Pharmaceuticals,
Senior U.S. District Judge Jan E. DuBois found that "the purpose
of judicial estoppel -- deterrence against manipulation of the
judicial process -- is served by barring Hardee-Guerra from
pursuing her claims for compensatory damages while allowing her
to seek appropriate equitable relief."
11th Circuit:
Chemical Agents May Not Be Used to Subdue Prisoners
John
Pacenti, Daily Business Review
08-31-10 --
The inmates were derided as "frequent fliers" by the guards at
Florida State Prison, a caustic reference to mentally ill
inmates who were gassed for their disruptive behavior, only to
be shipped for treatment to a nearby prison. These prisoners
would return after they were stabilized, only to have the cycle
repeat itself. . . . The cycle may be over after the 11th U.S.
Circuit Court of Appeals upheld a Jacksonville, Fla., judge's
ruling that the use of pepper spray and other chemical agents by
guards against mentally ill inmates is unconstitutional.
Zurich American
Sued by Elderhostel for Coverage of Trademark
Litigation Costs
Sheri Qualters, The National Law Journal
08-31-10 --
A lawsuit brought by
Elderhostel Inc.
against Zurich American Insurance Co. alleging breach of an
insurance policy is an example of increasingly common coverage
disputes between companies that wage expensive trademark battles
and their insurance carriers. . . . Elderhostel, a nonprofit
educational travel company, initially sued Zurich in Suffolk
Superior Court in Massachusetts on May 6 over the insurance
company's refusal to reimburse it for nearly $967,000 in legal
fees and costs to fight a trademark case. Zurich removed the
case to the U.S. District Court for the District of
Massachusetts on August 25.
STATE
COURTS
Are Judges Using Social
Media?
Courts are embracing Facebook,
Twitter and YouTube to connect with the public, but legal and
ethical hurdles remain
Tony
Mauro, The National Law Journal
09-01-10 --
On their own time, state judges are experimenting with social
media such as Facebook, according to a new survey. But judges
doubt that that they could use the new media tools in their
professional lives without violating judicial ethics codes. . .
. Those are the findings of a survey conducted by the Conference
of Court Public Information Officers conducted in June and
released Aug. 26 following a recent meeting of the group, which
represents spokespersons for state and federal courts.
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CALIFORNIA
Facebook's Ad Practices Draw
Class Action on Behalf of Calif. Minors
Facebook has not obtained
parental consent to use the names and likenesses of minors as
required under California law, says plaintiffs attorney
Amanda Bronstad, The National Law Journal
09-01-10 --
A class action has been filed against Facebook Inc. alleging
that the social networking site illegally uses the names and
likenesses of minors in California for advertising and other
commercial purposes. . . . The suit, filed on Aug. 26 in Los
Angeles County Superior Court, demands unspecified actual and
compensatory damages plus disgorgement of profits on behalf of
an estimated 1 million or more California residents aged 14 to
18 who were members of Facebook during the past three years and
whose names or likenesses Facebook used for advertising or other
commercial purpose. . . . Anthony Stuart of
Stuart Law Firm
in Los Angeles, one of the firms that filed the suit, said that
Facebook
has not obtained parental consent to use the names and
likenesses of minors as required under California law.
State Support
Courted in High Court Video Game Case
Tony
Mauro and Carrie Levine, The National Law Journal
09-01-10 --
A campaign is under way to win the hearts and minds of state
attorneys general in the run-up to a major Supreme Court case
testing the constitutionality of limits on the sale of violent
video games. . . . Representatives of the video game industry,
with $10 billion in annual sales nationwide, have been in
contact with state AGs to persuade them to support the industry
by filing a brief in the case, set for argument on Nov. 2. At
issue: whether California's 2005 law banning sale or rental of
violent video games to minors violated the First Amendment. . .
. "It's our understanding that there's a pretty intense lobbying
effort" against the law, said California Supervising Deputy
Attorney General Zackery Morazzini, who will argue in defense of
California's law before the high court in the case, titled
Schwarzenegger v. Entertainment Merchants Association and
Entertainment Software Association.
Testimony by
attorney at McCourts' divorce trial sheds light on
collapse of marriage
Leah Bishop, who drafted a
document that would have granted shared ownership of the Dodgers
to Jamie but that Frank refused to sign, describes
communications she had with the couple.
By
Bill Shaikin and Carla Hall, Los Angeles Times
08-31-10 --
Frank McCourt took the witness stand in his divorce trial
Tuesday, a day on which the most riveting testimony shed light
on the collapse of a marriage that lasted nearly 30 years. . . .
McCourt considered for months whether to sign a document that
would have granted shared ownership of the Dodgers to his wife,
Jamie. He said no on May 12, 2009, and later that day Jamie sent
an e-mail to Leah Bishop, the attorney who had drafted the
proposed document. . . . Bishop's response: "You have only two
tools at your disposal — a civil conversation with Frank or a
nuclear bomb."
Judge again puts
state efforts to resume executions on hold
By
Howard Mintz, mercurynews.com
08-31-10 --
California officials are trying to press forward with resuming
executions after a hiatus of more than four years, but the
state's lethal injection procedures continue to remain stuck in
legal limbo. . . . A Marin County judge on Tuesday put up the
latest roadblock to the state's effort to execute its condemned
killers, issuing a brief ruling that for now bars prison
officials from moving forward immediately with executions. . . .
The order came the same day that state lawyers argued in federal
court that nothing should stand in the way of setting execution
dates soon for six death row inmates, including David Allen
Raley, condemned to die in Santa Clara County for the 1985
murder of a Peninsula high school student and the attempted
murder of her friend.
DISTRICT
OF COLUMBIA
Judges Brook Hedge, Kaye K.
Christian and Judith E. Retchin to retire from D.C. court
By
Keith L. Alexander, Washington Post Staff Writer
09-01-10 --
Three D.C. Superior Court judges have announced their
retirements, setting off a race among District lawyers and
magistrate judges hoping to fill the slots. . . . The Judicial
Nomination Commission on Tuesday said Brook Hedge, Kaye K.
Christian and Judith E. Retchin plan to retire in December. All
three judges have served since the early 1990s. . . . Hedge, who
has been on the bench since 1992, sits in the court's civil
division. She is the judge overseeing the $20 million civil suit
filed by the family of
Robert Wone,
the Washington lawyer who was stabbed to death in the D.C. home
of three men in 2006. Hedge, who has overseen the early stages
of the suit, set a June 2011 trial date. . . . Christian, a
Lynchburg, Va., native who graduated from Dunbar Senior High
School in Northwest Washington, was appointed to the bench by
President George H.W. Bush in 1990. . . . Retchin was appointed
by Bush in 1992. The native of West Babylon, N.Y., was a former
prosecutor in the U.S. attorney's office in the District.
FLORIDA
Miami Athletes' Charities to
Return Rothstein Money
Charities run by Dwayne Wade and
Jason Taylor will give back a portion of the convicted Ponzi
schemer's donations
John
Pacenti, Daily Business Review
09-01-10 --
Charities run by Miami Heat star Dwayne Wade and former Miami
Dolphins star Jason Taylor agreed to return donations from Ponzi
king Scott Rothstein, his defunct law firm's bankruptcy trustee
reported Tuesday. . . . Both charities will return half of the
donations under a settlement with Herbert Stettin, the
bankruptcy trustee for Rothstein's Fort Lauderdale law firm.
Seven charities have agreed to return a total of $162,500. . . .
The money came from a $1.2 billion Ponzi scheme perpetrated by
Rothstein through the firm, Rothstein Rosenfeldt Adler. He is
serving
a 50-year prison sentence for
fraud and racketeering.
Fla. Supreme
Court reprimands judge
The
Associated Press, MiamiHerald.com
09-01-10 --
A central Florida judge has been publicly reprimanded by the
Florida Supreme Court for his treatment of the defendants,
plaintiffs and lawyers who went before his bench. . . . Seminole
County Judge Ralph Eriksson was rebuked Tuesday for being mean
and dismissive to several people who appeared before him in
2007, including individuals seeking domestic violence
injunctions.
High Court Kills
Three Proposed Amendments Including Redistricting
and Health Care
By
Lloyd Dunkelberger, Nyt Regional Media Group
08-31-10 --
In a setback for Republican legislative leaders, the Florida
Supreme Court on Tuesday upheld lower court decisions that will
keep constitutional amendments on legislative redistricting and
the new federal health care law off the November general
election ballot. . . . The state's highest court also blocked an
effort by U.S. Reps. Corrine Brown, D-Jacksonville, and Mario
Diaz-Balart, R-Miami, to challenge two other redistricting
amendments on the ballot - which are backed by Democrats and
others who support changing the way legislative and
congressional lines are redrawn every decade.
GEORGIA
Ga. Bar Settles Dram Shop
Case for $1 Million
Holt demand, spoliation sanction
help put end to suit over fatal crash
Katheryn Hayes Tucker, Fulton County Daily Report
08-31-10 --
A Holt demand and a spoliation sanction from Cobb County State
Court Chief Judge Toby B. Prodgers were the key ingredients in
the $1 million settlement of a wrongful death case against The
Sports Grill for serving alcohol to a customer who had a fatal
crash on the way home. . . . The drama continued into the final
hour before the settlement deadline set by plaintiffs attorneys
James L. Creasy III of
Gillis & Creasy
and Lloyd N. Bell of
Bell & Mulholland,
who were fielding calls on their cell phones from their cars and
offices until nearly noon on July 15, when Statewide Insurance
Co., acting through RCA Insurance, wrote the check rather than
risk exceeding the $1 million policy liability limit if the case
had gone to trial.
MICHIGAN
Juror expelled from case due
to Facebook status
Mark
Raby, TG Daily
08-31-10 --
Apparently judges aren't too happy when jurors update their
Facebook status to say, "gonna be fun to tell the defendant
they're guilty." . . . That's exactly what happened in the
middle of deliberations in a Detroit-area court case.
20-year-old juror Hadley Jons was in the jury pool, in
deliberations that lasted more than one day.
NEVADA
Settlement reached after
judge refuses to dismiss copyright suit
By
Steve Green, Las Vegas Sun
08-31-10 --
Las Vegas copyright enforcement company Righthaven LLC won a
legal victory in one of its lawsuits Tuesday when a federal
judge refused to dismiss the suit. . . . U.S. District Judge
Philip Pro rejected a defendant’s argument that the case should
be dismissed because Righthaven didn’t own the copyright to the
story at the time of the alleged infringement. . . . This was
the first ruling on a contested dismissal motion by any of the
federal judges assigned to the 107 Righthaven lawsuits filed in
U.S. District Court for Nevada in Las Vegas since March.
NEW
JERSEY
Ticket-Fixing N.J. Judge Is
Handed Jail Term but May Not Serve
Mary
Pat Gallagher, New Jersey Law Journal
09-01-10 --
Wanda Molina, the Jersey City, N.J., chief municipal judge at
the center of a ticket-fixing scandal that caused her and three
other judges to lose their jobs and face criminal charges, was
sentenced on Aug. 27 to 364 days in jail, though she may be able
to avoid hard time. . . . Bergen County Superior Court Judge
Harry Carroll also imposed a three-year probationary term to be
served first, and at the end of it, Molina can apply to vacate
the prison sentence. . . . "We're very happy with the result
because basically she won't do any jail time as long as she
successfully completes probation and there is no reason to
believe that that won't happen," says Molina's lawyer, Anna
Cominsky of
Krovatin Klingeman
in Newark.
NEW
MEXICO
Threat against judge prompts
arrest
Suspect already facing drug
charge
Bill
Diven , KRQE
08-31-10 --
The Santa Fe County sheriff said he believes it was a
22-year-old man already in trouble with the law who called in a
threat against a judge that closed a courthouse Monday. . . .
Steven Martinez was arrested late Monday night accused of
threatening District Court Judge Michael Vigil. . . . That
threat closed down the Santa Fe courthouse.
NEW
YORK
N.Y. Judge Vacates
Deportation Plea Due to Changing Legal Landscape
Noeleen G. Walder, New York Law Journal
09-01-10 --
A judge's warning that a defendant could be subject to
deportation if he pleaded guilty to a misdemeanor did not
alleviate the ineffectiveness of his counsel under a new
standard expressed by the U.S. Supreme Court, the judge ruled in
vacating his prior acceptance of the plea. . . . Brooklyn Acting
Supreme Court Justice Joseph K. McKay observed that the U.S.
Supreme Court's recent decision in
Padilla v. Kentucky,
130 S. Ct. 1473, had altered the legal landscape since he had
accepted Jose Garcia's plea 2 1/2 years ago. . . . "[W]here, as
here, defendant is found in fact to have been misled by bad
advice from a so-called retained specialist and by a lack of
advice from his defense attorney, the Court's general warning
will not automatically cure counsel's failure nor erase the
consequent prejudice," McKay wrote in
People v. Garcia,
4050-06.
Judge Rules In
Favor of Senecas
Posted By: Collin Bishop, WGRZ-TV
09-01-10 --
Federal Court Judge Richard Arcara has ruled in favor of the
Seneca Nation's challenge to New York State's attempt to collect
tax on cigarette sales to non-Indian customers. . . . The judge
issued a temporary restraining order prohibiting the state from
collecting sales tax from cigarette sales on Indian
reservations. . . . Judge Arcara has ordered another court
hearing for September 2. . . . Tuesday's court proceedings came
after a New York State Sureme Court Justice refused to block the
state on Monday from taxing the cigarette sales. . . . The state
had planned to collect the tax beginning Wednesday, September
1st.
OKLAHOMA
Judge off case after her
actions are uncovered
Ali
Meyer Reporting KFOR
09-01-10 --
It is less than two weeks until the Jerome Ersland Murder trial
is set to begin and the case is now practically back to square
one. The district judge is now off the case. Judge Tammy Bass-Lesure
says, "I don't want anyone, rich poor black or white, to think
they come in my courtroom and not get a fair trial." Judge Bass
Lesure recused herself in a very short closed-door meeting. . .
. The record of that meeting has been sealed however, sources
are speaking out about what they believe is the real reason
Bass-Lesure stepped down. . . . Sources close to the Ersland
trial confirm the Oklahoma County District Attorney's office has
been investigating the practices of Judge Tammy Bass-Lesure on
the bench and off. . . . We know the D.A.'s investigation
involves a man named Colton Taz Ama.
OREGON
Judge:
Oregon vets lawsuit can proceed
Mike
Benner, By kgw.com
08-31-10 --
A federal judge has ruled that an Oregon veterans' lawsuit
against Kellogg Brown & Root can proceed. The lawsuit stems
from the veterans' claim they were exposed to a dangerous and
toxic chemical while serving in Iraq. . . . "We're moving in the
right direction," said attorney David Sugerman. . . . Sugerman
represents more than two dozen Oregon veterans who are now
fighting a battle on their home turf. Their enemy is Kellogg
Brown & Root. In May 2003, the Houston-based company was in
charge of a construction project at a water treatment plant in
Iraq. . . . "The plant was in bad condition, being restored,"
said Sugerman. "The plant was contaminated with sodium
dichromate, a very dangerous and toxic chemical."
PENNSYLVANIA
Discovery Rule Exception in
Hormone Replacement Cases Ruled a Jury Question
Amaris Elliott-Engel, The Legal Intelligencer
09-01-10 --
In a decision that restores 1,000 hormone replacement therapy
mass tort cases to the Philadelphia Common Pleas Court's
caseload, the state Superior Court said it is a question of
fact, not a question of law, whether the plaintiffs could have
known at the time of their diagnoses with breast cancer that the
alleged cause of their cancer was their HRT prescriptions. . . .
The manufacturers of HRT drugs argued that the plaintiffs'
two-year statute of limitations ran from the day they were
diagnosed with breast cancer, while the plaintiffs argued that
an alleged link between HRT drugs and breast cancer was not
known prior to the release of the Women's Health Initiative
study on July 9, 2002. The study received wide-ranging notoriety
because the study was discontinued out of the concern that the
study participants taking HRT were showing a higher rate of
breast cancer than the control group, among other reasons.
Pa. Supreme
Court:
Minors May Be Involuntarily Committed for Drug,
Alcohol Addiction
Leo
Strupczewski, The Legal Intelligencer
08-31-10 --
The Pennsylvania Supreme Court has upheld the constitutionality
of an act that allows for parents and guardians to have minors
involuntarily committed for drug and alcohol treatment. . . .
Writing that prior case law established the presumption that
parents act in the best interest of their children, the court,
by way of a 6-1 majority, ruled that parents' rights to make
decisions on the care of their children are "paramount" to the
constitutional rights of their children. . . . That, along with
the decision that the therapeutic nature of drug and alcohol
treatment altered the bar for due process claims, helped lead
the court to its ruling.
TEXAS
Dallas judge's ruling saying
gay couple could divorce in Texas rejected on appeal
By
Roy Appleton / The Dallas Morning News
09-01-10 --
A state appeals court in Dallas has rejected a lower court's
decision that two gay men who married in Massachusetts had the
right to divorce in Texas. . . . In October, state District
Judge Tena Callahan ruled that the men could legally end their
marriage and that the state's prohibition against
same-sex marriage
violated the federal constitutional right to equal protection. .
. . On Tuesday, the 5th District Court of Appeals in Dallas
reversed that decision and instructed Callahan to dismiss the
case.
Man slits his
throat in Dallas courtroom after judge issues
40-year sentence
By
Jennifer Emily / The Dallas Morning News
09-01-10 --
A Duncanville man slit his own throat in a Dallas courtroom
Tuesday moments after a judge sentenced him to 40 years in
prison. . . . Marcial Michael Anguiano pleaded guilty to
aggravated assault for cutting his niece with a butcher knife.
After state District Judge Larry Mitchell announced Anguiano's
sentence, Anguiano cut himself with a razor blade. . . . "As
soon as the judge sentenced him, I saw him do something with his
right arm," said Anguiano's defense attorney, Juan Sanchez. "I
turned and he cut himself with something he had brought into the
courtroom."
WASHINGTON
Federal judge denies appeal
by death row inmate
Judge: Execution set for Sept. 12
in murder of Burien woman, 22
Shannon Dininny; The Associated Press, The Olympian
09-01-10 --
A federal judge on Tuesday denied an appeal by Cal Coburn Brown,
who is scheduled to be executed this month, and state officials
continued preparations to carry out his sentence. . . . Brown
was sentenced to death for the 1991 torture and murder of
22-year-old Holly Washa of Burien. He had challenged the state’s
new one-drug protocol for lethal injection, as well as the state
Department of Corrections’ authority to obtain that drug and the
qualifications of the execution team.
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August
28 - August 30,
2010
FEDERAL COURTS
Paul Allen
Sues 11 Companies, Including Google and Apple,
for Patent Infringement
Amy Miller, The
Recorder
08-30-10 --
Billionaire Paul Allen, co-founder of Microsoft
Corp.,
filed suit
Friday
in federal court against 11 Internet search and
e-commerce companies, including Apple Inc.,
Google Inc. and Facebook Inc., alleging that
they're using technology developed at his
now-shuttered Palo Alto, Calif., laboratory,
Interval
Research Corp.
. . . The suit was filed by Allen's company,
Interval Licensing, in U.S. District Court in
the Western District of Washington. Interval
Licensing is represented by
Susman
Godfrey
and
Heim Payne &
Chorush.
Federal
Circuit Rules No Link Between Autism and Vaccine
Tony Mauro, The
National Law Journal
08-30-10 --
The U.S. Court of Appeals for the Federal
Circuit on Friday upheld lower court findings
that reject a causal connection between
childhood vaccines and the onset of autism. . .
. The ruling came in
Cedillo v.
Secretary of Health and Human Services,
which was the first of a series of test cases
heard by special masters for the U.S. Court of
Federal Claims in 2007. The claims court picked
several such cases to test different theories of
causation advanced in the roughly 5,000 cases
alleging a link to autism filed under the
National Childhood Vaccine Injury Act of 1986.
FCC Seeks En
Banc Rehearing of 2nd Circuit Ruling on
Indecency Policy
Alison Frankel,
The American Lawyer
08-30-10 --
Looks like two trips to the 2nd U.S. Circuit
Court of Appeals isn't enough for the Federal
Communications Commission in the so-called
"fleeting expletives" case. . . . In July,
you'll recall, a three-judge 2nd Circuit panel
ruled that the 2004 FCC policy fining
broadcasters for airing certain fleeting
expletives (such as Bono's proclamation at the
1994 Grammy Awards telecast that his award was
"fucking brilliant") was
unconstitutionally vague under the First
Amendment.
(We were tickled by the careful analysis Judge
Rosemary Pooler gave to such phrases as "dickweed"
and "kiss my ass.") The appellate court's July
holding was the second time the same three-judge
panel had heard a challenge to the FCC policy by
Fox Television; the 2nd Circuit had previously
declared the policy unconstitutional but the
U.S. Supreme Court reversed and remanded.
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Bankruptcy
Action Can Be 'Commenced' Despite Failure to
Meet Law's Requirements, 2nd Circuit Says
Mark Hamblett,
New York Law Journal
08-30-10 --
A bankruptcy action can be considered
"commenced" even when a debtor has failed to
meet a requirement imposed by Congress that he
first receive credit counseling, the 2nd U.S.
Circuit Court of Appeals ruled Thursday. . . .
Interpreting a "statutory tangle" of bankruptcy
provisions, the circuit said the counseling
requirement under
11 U.S.C.
§109(h)
is not jurisdictional in nature and a case can
still be regarded as begun by the filing of a
bankruptcy petition, which triggers an automatic
stay. . . . Section 109(h), added to the code by
Congress in the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005, was interpreted
by the 2nd Circuit in three separate pro se
bankruptcy cases that were on appeal.
Adams v.
Zarnel,
07-0090-bk, was the lead case.
Obama appeals
stem cell ruling; some work to stop
The Associated
Press, Las Vegas Sun
08-30-10 --
Promising medical research is in disarray as
scientists await an appeal by the Obama
administration of a judge's ruling that
undercuts taxpayer-funded research using human
embryonic stem cells. . . . The Justice
Department said Tuesday it will appeal later
this week a federal judge's order temporarily
halting such research money, a block that
scientists and patient advocates said could
irreparably set back the hunt for needed new
treatments. . . . "The present ruling, if it
stands, will be major blow to the hopes of many
patients and their families," said Dr. Peter
Donovan, a stem cell researcher at the
University of California, Irvine.
Federal judge
ignores forensics, going back to medieval past
Karen Boyd,
Asheville Citizen-Times
08-30-10 --
Nineteen years changes things — the science of
forensics is now more sophisticated. DNA
evidence convicts the guilty and frees the
innocent more conclusively than ever before.
Psychology studies show that eyewitness
reporting, once used as reliable evidence in
criminal trials, often skews the truth and often
is just plain wrong, even when the intent of
such testimony may be perfectly laudable. . . .
A federal judge in Georgia harkens the medieval
past (“Judge: Troy Davis failed to prove
innocence,” AC-T, Aug. 24), leading us back when
a man is pronounced guilty until he proves his
own absolute innocence; and, regardless of
statements from eyewitnesses that their original
testimony may have been flawed, that same judge
denies a new trial to Troy Davis, despite such
admissions. Physical evidence implicating Davis
does not in this case exist; however that fact
holds no sway.
CALIFORNIA
Foie
Gras-Related Lawsuit Against Whole Foods
Subsidiaries Thrown Out on Appeal
Leigh Jones, The
National Law Journal
08-30-10 --
A California appeals court has kicked out a
lawsuit arising from
Whole Foods
Market Inc.'s
aversion to foie gras. . . . Reversing a trial
court, the California 3rd District Court of
Appeal ruled that a poultry supplier with ties
to the delicacy's production failed to establish
that a lawsuit against subsidiaries of Whole
Foods belonged in California. The court found on
Aug. 18 that the Whole Foods subsidiaries lacked
sufficient ties to the state to require them to
defend a lawsuit there. The appeals court
directed the lower court to grant Whole Foods'
motion to quash service of summons by the
plaintiff, Grimaud Farms of California Inc.
Otero cites
cases that raised concerns about judge
By Silvio J.
Panta, Imperial Valley Press Staff Writer
08-29-10 --
Local prosecutors have been exercising their
right to disqualify Imperial County Superior
Court Judge Donal B. Donnelly from hearing any
portion of a criminal trial. . . . Imperial
County District Attorney Gilbert Otero said he
and the deputy DAs who work under him carefully
look at all cases and concluded that some of
Donnelly’s rulings and comments are unfair. . .
. Otero cited three cases Donnelly heard that
raised concerns about him. Donnelly declined to
comment about the matter. . . . Prosecutors have
sought to have Donnelly disqualified using
Section 170.6 of the Code of Civil Procedure,
which is a set of laws governing how cases are
handled in the courts.
GEORGIA
Insurance
Suit Ends With $14 Million Settlement
Agreement also
specifies $3.6 million for team of plaintiffs
lawyers
Greg Land, Fulton
County Daily Report
08-30-10 --
After almost six years and a circuitous route
through Georgia and federal courts, a class
action claiming that several interrelated
insurance companies illegally raised health
policy premiums on small-group policyholders has
settled for more than $14.6 million. . . . The
agreement includes a $3.6 million payday for the
plaintiffs' team: former Gov. Roy E. Barnes and
his Barnes Law Group partner John R. Bevis, who
served as deputy consumer insurance advocate
during the Barnes administration and as a lead
attorney on the insurance suit. The team also
includes L. Andrew Hollis Jr. and Steven W.
Couch of Birmingham's Hollis & Wright. . . . Pen
pal gets inmate freed, with help from lawyer
son.
Chastain Park
woman, man in Dooly Prison become unlikely
friends
By Bill Rankin,
The Atlanta Journal-Constitution
08-30-10 --
“I can’t believe you did this,” Mary Shannon
scolded her mom. “You don’t even know what he
did.” . . . You’re right, Carol Raeber admitted.
I don’t. . . . At the urging of a church friend,
Carol had become a pen pal with James “Country”
Parkerson, an inmate at Dooly State Prison. She
introduced herself in her first letter, dropping
in a family photo and also telling the prisoner
the names and ages of her children and
grandchildren and where they all lived. . . .
Her daughter learned of the letter and was
instantly alarmed. How could you share so much
personal information with a stranger? What do
you know about him? . . . Carol was shaken to
the point of tears. What was I thinking? . . .
The next letter from Dooly State Prison seemed
to wonder the same thing. I’m surprised,
Parkerson wrote. Why haven’t you asked the first
question most inmates get from their new pen
pals: Why are you in prison? . . . So Parkerson
told her: He was serving time for theft. And
murder.
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IOWA
Attacks on
Iowa Supeme Court ‘baseless and reckless,’
former justices say
By Jason Hancock,
Iowa Independent
08-30-10 --
The effort to oust the three Iowa Supreme Court
justices up for retention vote this fall, along
with calls by some to replace Iowa’s merit based
system for judicial appointment with partisan
elections, “reflect a fundamental
misunderstanding and misrepresentation of the
role, responsibilities and authority of judges
in the interpretation and application of the
Iowa Constitution,”
three former
state Supreme Court justices
wrote Sunday in The Des Moines Register. . . .
Iowa Supreme Court Chief Justice Marsha Ternus
and Justices Michael Streit and David Baker are
up for retention votes on the Nov. 2 ballot.
They are
targeted for
defeat
in an effort organized by Bob Vander Plaats, a
three-time former GOP gubernatorial hopeful who
says the court’s ruling last year
legalizing
same-sex marriage
is grounds for the judges to be voted out.
KENTUCKY
Judge Watkins
dies at 58: Popular 17-year officeholder was at
California conference
By Frank Boyett,
Evansville Courier & Press
08-29-10 --
Henderson County Judge-executive Sandy Lee
Watkins died in his sleep early Saturday morning
while attending a conference in San Diego,
Calif. . . . "He was the best judge we've ever
had and the best friend you could ever have,"
said Sheriff Ed Brady, one of the numerous
county officials and public leaders who gathered
at the home of Magistrate Hugh McCormick on
Alvasia Street soon after the news became known
Saturday morning. . . . Known statewide as a
confidant of governors and other high public
officials, Watkins died in bed beside his wife,
Susie, according to Commonwealth's Attorney Bill
Markwell, one of several local residents who
were also attending the National Association of
Development Organizations training convention,
which began Saturday. Watkins was attending the
convention because he was a longtime board
member of the Green River Area Development
District.
MARYLAND
Child rapist
Merzbacher appeals ruling to close loophole
Convicted child
rapist wants to eliminate need for judge's
approval to reissue old plea deal, which would
set him free
By Tricia Bishop,
The Baltimore Sun
08-30-10 --
Convicted child rapist John Joseph Merzbacher
has filed an appeal to close a loophole in a
recent court ruling that requires he be given a
fresh chance at freedom, despite his four life
sentences. . . . On July 30, federal court judge
Andre M. Davis ordered that a court must now
offer Merzbacher a 10-year plea deal that his
attorneys never properly presented before his
1995 trial, violating his constitutional rights.
But Davis added one seeming caveat that has
Merzbacher nervous. . . . "Before Merzbacher
gains full relief, a judge of the [Baltimore]
circuit court must express a willingness to
carry out the undertaking," Davis wrote in a
memorandum opinion accompanying his order. . . .
In a notice filed last week, Merzbacher said he
intends to appeal that provision "to the extent
that it states or implies that a judge … [has]
the discretion not to approve the plea
agreement."
MICHIGAN
From the
Facebook FAIL files:
Macomb County juror could face contempt charges
after posting about 'guilty' defendant during
trial
Jonathan Oosting
| MLive.com
08-30-10 --
Like all Macomb County jurors, 20-year-old
Hadley Jons received a warning not to discuss
her case outside of court. But that didn't stop
her from sharing her thoughts on Facebook. . . .
"actually excited for jury duty tomorrow," she
wrote Aug. 11 on the popular social media
website. "it's gonna be fun to tell the
defendant they're guilty. :P" . . . Jons never
got that chance though, and the next day proved
far from fun.
NEW JERSEY
KPMG
Accounting Malpractice Verdict Affirmed but $38
Million Damage Award Vacated
Michael Booth,
New Jersey Law Journal
08-30-10 --
In a half-empty/half-full ruling for KPMG, a New
Jersey appeals court on Thursday found
sufficient evidence that the accounting giant
was negligent in its audits of the books of a
ceramic collectibles company but inadequate
proof to support a $38 million damages award to
another company that acquired it. . . . A
three-judge panel said KPMG's spotty audit of
the ceramics company's books -- which should
have uncovered vast fraud and irregularities --
amounted to malpractice on a non-client, and
there was "substantial evidence" that the
acquirer and its financial backers relied on
KPMG's audit reports, which is a prerequisite to
finding third-party liability.
NEW YORK
N.Y. Court
Permits Retaliation Action Based on Overtime
Daniel Wise, New
York Law Journal
08-30-10 --
A Manhattan judge has rejected an Appellate
Division, 2nd Department, precedent in
concluding that two beauty salon workers may
claim they were fired in retaliation for
complaining that they had been denied overtime
pay. . . . Supreme Court Justice Emily Jane
Goodman in
Ji v.
Belle World Beauty,
603228/08, concluded that the 2nd Department's
2009 case "mistakenly construes" a ruling that
court had issued 10 years earlier. . . . The 1st
Department has yet to rule on whether New York
state Labor Law supports a claim of retaliation
for complaining about overtime violations, said
Daniel Alterman, one of the lawyers for the
fired workers.
Disgraced
Manhattan Judge James Gibbons' neighbors say
they're still in state of shock
By Vinnie
Rotondaro and Tina Moore , Daily News Writers
08-29-10 --
With a hand in his pocket and a slightly
furrowed brow, disgraced Manhattan Judge James
Gibbons was stoic during a stroll near his
Brooklyn apartment Saturday. . . . A week
earlier, he had been a highly respected jurist
in Manhattan's Criminal Court, but he quit his
job over allegations that he kept a stash of
porn on his work computer. . . . Sources said
Thursday that Gibbons had loaded his Manhattan
Criminal Court station with sexually explicit
images - some of females whose ages haven't been
determined. . . . Gibbons, an ex-prosecutor who
convicted rapists and killers, quit last week
after the cache was discovered. . . . Residents
at his Eighth Ave. building reacted with dismay
to allegations that their law-and-order neighbor
was apparently porn-crazed.
PENNSYLVANIA
A-Little-Too-Candid Camera: Parents Sue After
Catching Priest on Film Having Sex With Their
Daughter
By Michael
Rubinkam | The Associated Press | New York
Lawyer
08-30-10 --
A Pennsylvania couple secretly videotaped a
Roman Catholic priest having sex with their
18-year-old daughter in the basement of their
home and are now suing, saying he got her
pregnant. . . . The lawsuit, filed Thursday in
Berks County Court, alleges that the Rev. Luis
A. Bonilla Margarito carried on a sexual
relationship with the teen while he was the
chaplain of Reading Central Catholic High School
and she was a senior there. . . . The girl's
parents became suspicious and installed a camera
in their basement, where Bonilla and the teen
were spending large amounts of time. The camera
recorded the couple having sex in November 2009,
after she had graduated, according to the suit.
TEXAS
Court gets OK
for Toyota contempt hearing
By Chuck Lindell,
American-Statesman Staff
08-27-10 --
A Texas woman who was paralyzed in a 2005 crash
can pursue contempt of court action against
Toyota Motor Corp. for allegedly hiding
information about automobile defects, the Texas
Supreme Court ruled Friday. . . . Pennie Green
became a quadriplegic at 17 when her 1997 Camry
rolled over on a Johnson County highway,
collapsing the roof down to the driver's side
window sill. . . . Alleging defects in the roof
structure and seat belts, Green sued Toyota and
reached an out-of-court settlement of $1.5
million. Her lawsuit was dismissed in 2007. . .
. Two years later, however, the Toyota lawyer
who handled Green's case sued the carmaker in
federal court, alleging that Toyota illegally
concealed safety-related engineering documents
in numerous lawsuits over fatal or catastrophic
accidents — including Green's.
UTAH
Transient
charged with threatening judges
By jason bergreen,
The Salt Lake Tribune
08-29-10 --
A 43-year-old transient was charged Thursday for
allegedly making threats against three Utah
judges when he posted their photographs and
fictional charges against them on the door of a
South Salt Lake court in June. . . . The three
third-degree felony charges of retaliating
against a judge by threat were filed in 3rd
District Court. . . . Court documents state a
South Salt Lake court employee arrived at work
on June 22 and discovered 15 notices taped to
the door of the justice court. The notices had
photographs and career summaries of South Salt
Lake Justice Court Judge Catherine Johnson, and
4th District Judges Lynn W. Davis and Steven L.
Hansen.
WASHINGTON
Striking Coke
Workers Sue Over Health Insurance Cancellation
Posted by Eric
Lipman, Legal Blog Watch
08-30-10 --
If you can spell out the full name of the
statute commonly abbreviated
ERISA
without falling asleep, you're probably an ERISA
lawyer. You know, the one who has to sit through
interminable conference calls on every mergers
and acquisitions transaction your firm does,
just so that four hours in someone can say,
"Sound OK to you, Mary?" . . . Some striking
Teamsters at Coca-Cola plants in Western
Washington, though, have
filed an
ERISA suit
in federal court in Seattle, claiming that Coke
improperly canceled their health insurance
coverage a day after their strike began.
August
26 - August 27,
2010
FEDERAL COURTS
7th Circuit Cites New Health Care Law in Univ.
of Chicago Medicare Ruling
Sheri Qualters,
The National Law Journal
08-27-10 --
The 7th U.S. Circuit Court of Appeals created a
circuit split by ruling that Medicare should
reimburse the University of Chicago Medical
Center $2.8 million for medical residents'
research work not related to Medicare patients.
. . . On Aug. 25, a unanimous panel upheld a
Northern District of Illinois ruling in
The
University of Chicago Medical Center v. Sebelius.
. . . The lower court held that the medical
center is eligible for Medicare reimbursements
for "indirect medical education" expenses, such
as research. In affirming, the 7th Circuit
specifically ruled that the hospital could
include the time medical residents spent on pure
research in fiscal year 1996 in determining how
many full-time-equivalent medical workers it
employed for Medicare reimbursement purposes.
Federal Judge Sanctions Tech Company Over
Handling of E-Discovery
Daniel Wise, New
York Law Journal
08-27-10 --
A federal judge has sanctioned a leading
developer of "flash drive" technology for its
mishandling of electronic discovery in what the
judge called a "David and Goliath-like"
struggle. . . . Southern District Judge William
H. Pauley ruled that he would instruct the jury
to draw a negative inference from the fact that
SanDisk Corp., a company with a market
capitalization of $8.7 billion, had lost the
hard drives from laptop computers it issued to
two former employees who are the plaintiffs in
Harkabi v.
Sandisk Corp.,
08 Civ. 8230.
Judge Denies Sanofi's Request to Stop Generic
Rival
Jenna Greene, The
National Law Journal
08-27-10 --
A federal judge has denied a bid by Sanofi-Aventis
to halt sales of a generic version of its
blockbuster blood thinner Lovenox, a move which
may help pave the way for the Food and Drug
Administration to approve generic biologic
drugs. . . . In a 33-page opinion issued last
night, Judge Emmet Sullivan of U.S. District
Court for the District of Columbia found Sanofi
failed to show the FDA had acted unreasonably in
approving an application by Sandoz Inc. to make
generic Lovenox. He denied Sanofi’s request for
a preliminary injunction that would have forced
the FDA to rescind approval of the generic,
which has been on the market for a month.
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The Government Can Now Track You, Sans Warrant,
Via GPS
By Dan Nosowitz,
Fastcompany.com
08-26-10 --
The U.S. Court of Appeals for the Ninth
Circuit,. You know who else thinks so? The
dissenting judge, a conservative, no less, who
himself made the connection to Orwell's 1984.
This is bad, bad news, and the sooner it gets
overturned the safer we should all feel. . . .
The story dates back to 2007, when the Drug
Enforcement Administration began monitoring one
Juan Pineda-Moreno, an Oregonian whom the DEA
suspected of maintaining a marijuana grow
operation. DEA agents,
in the words
of Time magazine,
"snuck onto his property in the middle of the
night" and planted a GPS tracking device on the
underside of his Jeep, which was parked in his
driveway at the time.
High Court Restriction on Reach of U.S. Laws Is
Applied to RICO
Venezuelan
citizen claims he was wrongly imprisoned for
almost three years in Venezuela as part of a
foreign currency extortion scheme
Mark Hamblett,
New York Law Journal
08-26-10 --
The recently rejuvenated presumption against the
extraterritorial reach of U.S. laws applies to
civil racketeering cases, a federal judge has
ruled. . . . Applying the logic of the U.S.
Supreme Court's June decision limiting the reach
of securities actions, Southern District Judge
Jed S. Rakoff dismissed a civil Racketeer
Influenced and Corrupt Organizations Act action
alleging that individuals and entities
affiliated with the Venezuelan government
unjustly imprisoned a Venezuelan citizen and
damaged his business. . . . Rakoff made that
ruling in
Cedeño v.
Intech Group Inc.,
09 Civ. 9716, where plaintiff Eligio Cedeño
sought damages for a "wide-ranging money
laundering scheme" by Venezuelan officials and
their allies "that utilized New York-based U.S.
banks to hold, move and conceal the fruits of
fraud, extortion and private abuse of public
authority."
Federal Judge Cuts Medicaid Lien in $12 Million
Mold Settlement
Shannon P. Duffy,
The Legal Intelligencer
08-26-10 --
In a decision that is sure to grab the attention
of the personal injury bar, a federal judge has
ruled that a settling plaintiff cannot be
automatically required to reimburse the
Pennsylvania Department of Public Welfare for
100 percent of her Medicaid expenses because a
settlement always reflects a compromise. . . .
The ruling by U.S. District Judge Berle M.
Schiller comes just a few months after lawyers
at Kline & Specter
secured a
settlement worth nearly $12 million in a
"state-created danger" suit
against the Philadelphia Housing Authority over
persistent mold in a home that allegedly
triggered an acute asthma attack and left a
teenage girl brain damaged.
9th Circuit Rules Televangelist Can Sue ABC for
Defamation
Paul Elias, The
Associated Press, Law.com
08-26-10 --
A federal appeals court on Tuesday
reinstated a
televangelist's defamation lawsuit
claiming ABC's "20/20" news program used a
fictionalized sermon portraying himself as a
wealthy braggart out of context. . . . A trial
court judge had earlier tossed out the lawsuit
filed by the Rev. Frederick Price, ruling that
the video apparently showing the founder of the
Crenshaw Christian Center boast about his wealth
didn't leave the audience with the wrong
impression of the preacher: Price is wealthy and
he does boast, going as far as calling himself a
"prophet of prosperity."
CALIFORNIA
Cal State Stanislaus ordered to release
documents on Palin's appearance
A judge says
officials had violated California's open records
law by refusing to make public the papers
involving the former Alaska governor's
participation in a campus fundraiser.
By Carla Rivera,
Los Angeles Times
08-27-10 --
California State University officials violated
the state's open records laws when they refused
to release the contract and other documents
related to former Alaska Gov. Sarah Palin's
recent fundraising appearance at a Cal State
campus, a judge has ruled. . . . Cal State
Stanislaus and a foundation affiliated with the
campus were sued by a government watchdog group
in April after they refused to disclose details
of Palin's contract, including her speaking fee.
Officials argued that the nonprofit foundation
that hosted the former Republican vice
presidential candidate was not subject to the
state's Public Records Act.
Judge's rape comments prompt protest rally
Jeremy Grimaldi,
The Hamilton Spectator
08-27-10 --
Protesters have lashed out at what they perceive
as prejudices in the justice system after a
judge labelled an alleged rape victim's
courtroom behaviour as "off the wall." . . .
During a noon-hour rally of about 30 people
outside John Sopinka Courthouse yesterday, they
called into question Justice Kim
Carpenter-Gunn's suggestion the woman's
testimony should be treated as suspect because
she could have been "strung out on drugs." . . .
The complainant "certainly had that appearance,"
said the judge, "but I'm not (an) expert on
that, but I've seen ... many instances of people
showing that behaviour."
Judicial Committee Unanimously Confirms
California's First Filipina-American Chief
Justice
Kate Moser, The
Recorder
08-26-10 --
In a courtroom electric with pride from both her
colleagues on the bench and leaders of the
Filipino legal community, California chief
justice nominee Tani Cantil-Sakauye was
confirmed Wednesday by the Commission on
Judicial Appointments. . . . If further
confirmed by the electorate in November, she
will become the 28th leader of the state's
judicial branch. . . . Her confirmation, said
Melvin Avanzado, president of the Philippine
American Bar Association, will provide "a
tremendous amount of inspiration and strength to
those of us who otherwise may not aspire to the
bench."
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FLORIDA
New Strategy in Foreclosure Battles Attacks
Validity of Affidavits
Paola Iuspa-Abbott,
Daily Business Review
08-27-10 --
When it comes to fighting foreclosures,
homeowners and their lawyers may have found a
new strategy to score courtroom victories. . . .
Defense lawyers across Florida are increasingly
attacking the validity of affidavits that owners
of notes must file with the courts as part of
the foreclosure process. Attorneys like Dustin
Zacks, of the firm
Ice Legal
in West Palm Beach, Fla., are successfully
arguing that plaintiffs -- usually a trust that
owns the note or the servicer of the note -- are
violating court rules by filing affidavits with
no records attached to support their foreclosure
suits. The records include details of the loan,
borrower fees and payment history. . . . The
Florida Rules of Civil Procedure, Rule 1.510,
states that "sworn or certified copies" of all
records referred to in the affidavit must be
attached as evidence in the foreclosure case.
Judge tosses out Florida growth management law
By Michael
Peltier, News Service Of Florida,
MiamiHerald.com
08-27-10 --
In a ruling certain to re-fan the flames over
growth in Florida, a circuit judge on Thursday
threw out a 2009 developer-backed law that
relaxed transportation and other requirements in
targeted, high density areas around the state. .
. . In a summary judgment that sided with cities
and counties, Second Circuit Chief Judge Charles
Francis declared SB 360 unconstitutional and
ordered state officials to take the
controversial law off the books. . . . The law,
Francis determined, was an unfunded mandate
passed in violation of a 1991 statute aimed at
protecting local governments from footing the
bill for legislative actions.
ILLINOIS
Blagojevich holdout explains vote
By Stacy St.
Clair, Chicago Tribune reporter
08-27-10 --
Battling stomach pains and fatigue, JoAnn
Chiakulas would take the train into the city
each morning knowing that her resolve was
disappointing some people and infuriating
others. . . . But the 67-year-old grandmother
said she also knew that as a juror in Rod
Blagojevich's corruption trial, she had a
responsibility to follow her conscience and the
law. She said she did not believe he or his
brother committed a crime with their actions to
fill Barack Obama's Senate seat, so she would
not find them guilty despite what other jurors,
prosecutors and, perhaps, the general public
wanted. . . . If it was going to be 11-1, so be
it.
Former Gov. Blagojevich Headed for Retrial Early
Next Year -- Without His Brother
Don Babwin and
Michael Tarm, The Associated Press, Law.com
08-27-10 --
By dropping all charges against Rod
Blagojevich's brother on Thursday, the federal
government removed what had become an obstacle
to their primary mission: convicting the
impeached Illinois governor in a retrial now set
for early next year. . . . Jurors who deadlocked
last week
on all but
one of 24 charges in the first trial
described the case against Robert Blagojevich as
by far the weaker of the two. And they said the
former Army officer presented an earnest,
sympathetic figure when he insisted on the
witness stand that he and his brother did
nothing wrong. . . . Robert Blagojevich's
attorneys said prosecutors first signaled their
desire to simplify their strategy on Wednesday
when they privately offered to separate his case
from the former governor's. Still, he was
surprised when the government dropped the
charges instead.
IOWA
Iowa foes of same-sex marriage seek to oust
judges who legalized it
By Sandhya
Somashekhar, Washington Post
08-27-10 --
Politics is as much a mainstay of the Iowa State
Fair as the deep-fried food and the cows
sculpted out of butter. But the crowds searching
for a remote corner under the grandstand this
week were not headed for one of the presidential
hopefuls who routinely drop by. They were
interested in a normally low-key judicial
election that has suddenly taken center stage in
the national fight over same-sex marriage. . . .
Conservative activists are trying to oust three
judges on the state Supreme Court whose
unanimous ruling last year legalized same-sex
unions. Their decision stunned opponents
nationwide and delighted advocates who were
eager for a victory in the heartland. . . . Now,
conservatives are staging an unusual campaign
that aims to defeat the judges in November.
KANSAS
Suit seeks to block naming of state justice
By Ron Sylvester,
The Wichita Eagle
08-27-10 --
Claiming election fraud, four Kansans filed a
lawsuit in federal court Thursday to block the
filling of a current opening on the Kansas
Supreme Court. . . . The suit seeks to change
the way the Kansas Constitution allows
appointment of justices by the governor,
following recommendations of
a nominating
committee.
. . . "I've been talking to friends in the
community, and a lot of us believe the current
method of selecting Supreme Court Justices is
just not right," said Wichita businessman Bob
Dool, one of the plaintiffs in the suit. . . .
Dool, Thomas Schermuly of Wichita, Julie Brown
of Olathe and Donald Rosenow of Clay Center
filed the lawsuit through Indiana attorney James
Bopp Jr. . . . Bopp worked on the case that
earlier this year resulted in the U.S. Supreme
Court overturning controls on campaign financing
for corporations, unions and nonprofit
organizations.
(Bopp’s
extensive work challenging election laws was
detailed in a profile "The
Big Bopper"
in the ABA Journal in 2006.)
|
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its customers do their best work.
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Victims-of-Law Advertiser |
MICHIGAN
Weaver steps down; gov appoints appeals judge
Davis
Surprise Granholm
appointment changes state Supreme Court makeup
paul egan / The
Detroit News
08-27-10 --
Lansing -- The surprise resignation Thursday of
Supreme Court Justice Elizabeth "Betty" Weaver
caused political upheaval as Gov. Jennifer
Granholm quickly appointed a replacement and
tilted the balance of power in the state's
highest court. . . . Naming Appeals Court Judge
Alton Davis to Weaver's seat gave Democrats a
majority on the court for the first time in 11
years and could have lasting impact on the
state, analysts say. . . . The change encouraged
trial attorneys who said tort victims might
finally get a fair shake but chilled insurance
executives who said citizens may have to brace
for higher premiums.
Spared death: 7 reactions from family,
experts, attorneys to life in prison for Timothy
O'Reilly
Jonathan Oosting
| MLive.com
08-26-10 --
Timothy O'Reilly likely will spend the rest of
his life in prison without the option of parole,
but the 37-year-old Detroit resident
will not face
execution for his role in the 2001 murder of an
armored car guard
outside of the Dearborn Federal Credit Union. .
. . O'Reilly was convicted earlier this month
for his role in the $204,000 robbery, which
involved five other men. Authorities said he
shot Norman "Anthony" Stephens, who was already
laying on the ground wounded, in the back during
the heist. And during the trial, prosecutors
played a tape of O'Reilly laughing and bragging
about the shooting during a secretly-recorded
prison conversation. . . . Defense attorneys,
meanwhile, argued O'Reilly was manipulated by
the man who helped organize the heist, pointing
out his death would only add to a tragic
situation.
NEW JERSEY
Master in Prudential Fraud Case Lowers His Fees
as Plaintiffs Seek His Ouster
Judge defends
appointment of special master and the hours
billed
Charles Toutant,
New Jersey Law Journal
08-26-10 --
The special master appointed to handle discovery
in a mammoth fraud and bribery suit against
Prudential Life Insurance Co. has agreed to
reduce his fees, even as the plaintiffs lawyers
are trying to
dispense with him altogether.
. . . William Hunt said in an Aug. 19 letter to
the parties that he would cut his hourly rate
from $450 to $350. The concession came after
plaintiffs lawyer Angela Roper sounded alarms
over the $77,265 bill Hunt submitted for his
first three weeks on the job. The rate
reduction, retroactive to Hunt's appointment,
will shave about $17,000 off the total. . . .
But Roper says she will nonetheless proceed with
her motion, filed July 30, for an emergent
interlocutory appeal of Hunt's appointment in
the case, In re Prudential Life Insurance Co.
of America Litigation, AM-00820-09.
NEW YORK
Manhattan Judge Quits After Porn Stash Found on
Work Computer
Ex-prosecutor was
on paternity leave after having fathered a child
with a legal aid attorney
By Jennifer
Millman, NBC New York
08-27-10 --
A longtime criminal court judge whom colleagues
hailed as a stickler for the law resigned
abruptly after authorities discovered a
cleavage-heavy porn cache on his work computer
during a routine system check, according to a
published report. . . . James Gibbons, a highly
regarded former prosecutor, was on paternity
leave after having fathered a child with a legal
aid attorney 16 years his junior when
authorities found the stash and seized his
computer,
reports the
Daily News.
. . . "There was a lot of porn on his computer –
all young women," an investigator told the
paper. "Lots of crotch and cleavage shots."
FedEx sues to block investigation by NY attorney
general
By Wayne Risher,
Memphis Commercial Appeal
08-26-10 --
FedEx says New York Atty. Gen. Andrew Cuomo is
out of line with a consumer protection probe
into the express company's insurance policies
for valuables like jewelry and antiques. . . .
FedEx Corp. filed a lawsuit in U.S. District
Court in Manhattan Tuesday asking a judge to
stop New York's top lawyer from gaining access
to company records on insurance-related claims
and complaints. . . . FedEx, which categorically
denied fraud or illegal acts in any aspect of
its business, said federal law gives New York
authorities no jurisdiction over matters related
to an air carrier's prices, routes or services.
Spiritual 'Retreat' Is Entitled to Tax
Exemption, Court Finds
Joel Stashenko,
New York Law Journal
08-26-10 --
An upstate New York compound that seeks to
provide "spiritual renewal" to parishioners from
Roman Catholic churches, in part through the
inspirational art visitors work on while there,
is entitled to the property tax exemption denied
by officials in a Sullivan County town, a split
appeals court ruled Tuesday. . . . The Appellate
Division, 3rd Department, decided 3-2 in
Matter of the
Eternal Flame of Hope Ministries v. King,
508480, that the group had demonstrated
sufficient proof that its complex is a "retreat"
eligible for a charitable tax exemption under
Real Property Tax Law 420-a(1)(a). . . . The
group argued that its 46-acre facility was used
for "days of recollection, retreat, pilgrimages,
shrines, mass, and adoration benediction." That,
plus the "concrete plans" the operators have to
improve the property to make it even more
accessible to students and church members fit it
within the Real Property Tax Law (RPTL)
exemption, a majority of the court ruled.
OREGON
Supreme Court Allows Attorneys Fees For Those
Who Represent Themselves
Amelia Templeton,
OPB News
08-27-10 --
The Oregon Supreme Court has ruled that people
who win lawsuits over public records can collect
attorneys fees from the state, even when they
are acting as their own lawyers. . . . The state
wants to make sure that money isn’t an obstacle
for people who want to see public records or to
sue over civil rights. . . . In this case,
Portland Attorney Craig Colby requested an
autopsy report after police shot a man outside
Colby’s home. The state refused to provide the
report, so Colby filed a public records suit on
his own behalf.
PENNSYLVANIA
Federal Judge's Ruling Sets Landscape for
'Kids-for-Cash' Civil Suits
Leo Strupczewski,
The Legal Intelligencer
08-27-10 --
A federal court judge this week dismissed three
defendants from civil suits related to the
"kids-for-cash" scandal in Luzerne County, Pa.,
effectively clearing the way for the case to
move forward. . . . Judge A. Richard Caputo of
the U.S. District Court for the Middle District
of Pennsylvania granted motions filed by the
wives of former Luzerne County Common Pleas
Court Judges Mark A. Ciavarella Jr. and Michael
T. Conahan, as well as one filed by Conahan's
brother-in-law, who served as a psychologist for
the county's probation department. . . . It had
not been proven by the plaintiffs in the cases,
Caputo wrote in Wallace, et al. v. Powell, et
al., that either Ciavarella's wife, Cindy
Ciavarella, or Conahan's wife, Barbara Conahan,
knew of or were involved in any conspiracy among
their husbands and others to send juveniles to a
pair of private, for-profit juvenile detention
centers in exchange for $2.6 million.
Federal Judge Cuts Medicaid Lien in $12 Million
Mold Settlement
Shannon P. Duffy,
The Legal Intelligencer
08-26-10 --
In a decision that is sure to grab the attention
of the personal injury bar, a federal judge has
ruled that a settling plaintiff cannot be
automatically required to reimburse the
Pennsylvania Department of Public Welfare for
100 percent of her Medicaid expenses because a
settlement always reflects a compromise. . . .
The ruling by U.S. District Judge Berle M.
Schiller comes just a few months after lawyers
at Kline & Specter
secured a
settlement worth nearly $12 million in a
"state-created danger" suit
against the Philadelphia Housing Authority over
persistent mold in a home that allegedly
triggered an acute asthma attack and left a
teenage girl brain damaged.
TEXAS
Judges riled over insider deal: theirs
By Rick Casey,
Houston Chronicle Commentary
08-26-10 --
Campaigns for Harris County Republican judges
used to be so simple. . . . Long-time political
consultant Allen Blakemore would design and run
a combined campaign for the entire Republican
slate. . . . Television, direct mail, phone
calls — the whole range. . . . Partly through
his association with judicial kingmaker Stephen
Hotze, Blakemore had dominated judicial
campaigns. . . . But after a series of
controversial (and, perhaps more importantly,
losing) campaigns, Blakemore was so unpopular
with the judges this year that he didn't even
bid when the party asked for proposals. . . .
One of those was a scurrilous campaign two years
ago against former Judge Joan Huffman, who
nonetheless beat Blakemore's client in a race
for the state Senate.
WEST VIRGINIA
Judge recommends $12M settlement in PCA case
By Chris Dumond,
Lynchburg News and Advance
08-26-10 --
A West Virginia man who nearly died from a
salmonella infection is likely to get the
largest payout, nearly $2.4 million, from the
more than $12 million settlement created after
last year’s outbreak tied to Lynchburg-based
Peanut Corp. of America. . . . “Everything that
could have gone wrong with you went wrong with
him,” said attorney
John
Curry, a Charleston, W.Va.-based lawyer who
represented the 59-year-old man. “He almost
died.” . . . A federal judge recommended
approval of the 122-claim settlement Wednesday.
Of those, Magistrate Judge Michael Urbanski was
charged with specifically reviewing settlements
for the families of nine people who died and 45
children sickened. . . . Individual settlements
to be paid in the children’s cases range from
$15,000 to $395,008, a review of court records
showed. Settlements in the wrongful death cases
range from $98,752 to $987,520.
WISCONSIN
Ex-Judge Reprimanded After Vowing to Let Cases
Sit ‘Until Hell Freezes Over’
By Debra Cassens
Weiss, ABA Journal
08-27-10 --
A former Wisconsin judge who complained about a
lack of clerical help has been reprimanded for a
backlog of about 3,500 cases. . . . Former Judge
John Zodrow had worked in the city of Cudahy
municipal court, which had an annual caseload of
about 4,000 cases, according to an opinion by
the Wisconsin Supreme Court published by
Leagle.com.
The Milwaukee Journal Sentinel’s
Proof and
Hearsay
blog has a story. . . . Court officials
repeatedly warned Zodrow about the backlog, but
he did nothing about it, the opinion says.
|
Barbara
Johnson, Author, Civil & Criminal Litigation Attorney
|
Amazon is a Victims-of-Law Advertiser
|
Attorney
Barbara Johnson believes:
-
Americans should have a common purpose
- Americans do not want bitter partisan debates
- Americans do not want "gender wars" and "culture wars"
- Americans want simple problems solved, without regard
to special interests.
In her bestseller,
Behind the Black Robes: Failed Justice, Attorney
Johnson covers every conceivable topic regarding judges,
their decisions, and how Americans are victimized by the
judicial system. Some of the subjects she hits on are
immunity and the pseudo Eleventh Amendment;
quasi-judicial, prosecutorial, and qualified Immunities,
which she terms “Protecting Judges, Parasites, the
Other Enemies of the People”; legal malpractice or
“foxes guarding the chicken coops”; problems with
transcription companies; intimidation and insolence of
judges; rape and date rape; child protection agency
cases and governmental kidnapping; fraud and complicity
by the Court; child custody; divorce; immigration fraud,
and so much more.
Of greatest concerns to her
are the immunity enjoyed by our judicial system, and the
federal annual bonuses to the States, of which she
believes, if abolished, our judicial ills would be cured
immediately.
Barbara Johnson is a
graduate of the New England School of Law: J.D., and
earned her B.A. from Bennington College, along with
attending Massachusetts Institute of Technology (MIT),
Center of International Relations, and Middlebury
College’s Russian Summer School.
She was awarded the West
Publishing Company Corpus Juris Secundum Series Award,
1987, for highest annual scholastic average, and had her
papers selected for the Nathan Burkan Memorial
Competition (sponsored by ASCAP: "Patent or Copyright
Protection for Computer Programs: A Traditional Legal
Comparative Analysis Overlayed with a Linguistic Theory"
by the Dean of New England Law School to Competition).
She has trial and appellate experience in Massachusetts
Superior, District, Probate & Family Courts, Appeals
Court, Supreme Judicial Court, U.S. District Court for
Massachusetts, has appearedd pro hac vice in the U.S.
District Courts in Concord, New Hampshire, and Portland,
Maine,and U.S. Court of Appeals for the First Circuit.
Mrs. Johnson now lives in
Costa Rica. |
Eyes
on the Judiciary
