Thursday, April 16, 2015

BP oil spill settlement: Patrick Juneau pays over $5bn to claimants

BP oil spill settlement: Patrick Juneau pays over $5bn to claimants:

International Business Times (UK)

"Patrick Juneau, the administrator managing a fund to compensate people and businesses claiming to have suffered economic losses from the 2010 Gulf of Mexico oil spill, has said that more than $5bn (£3.4bn, €4.7bn) has been paid out from the fund.

As of now, a total of $5.037bn has been paid to 62,162 claimants, Juneau said in a news release.

The announcement comes five days ahead of the Deepwater Horizon disaster's fifth anniversary.

The fund was set up under a 2012 settlement, and Juneau was appointed to manage it.

However, BP later accused Juneau of improperly awarding payouts, including to those who did not suffer any harm in the disaster. It also filed a court compliant to remove him, but the court decided to keep him in the post.

The oil giant later changed its stance after conducting a review of payout procedures, and withdrew its appeal against the court's decision. It said its review found improvements in the procedure, including the addition of "scores" of fraud investigators.

 "We appreciate the work that has been done to develop and implement improved processes to, among other things, detect and prevent the payment of fraudulent claims. We share with Mr Juneau and the claims facility the goal of compensating the people and businesses of the Gulf under the terms of the settlement agreement," BP America President John MingĂ© said earlier."

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Most GM Ignition Key Claims Barred

Image result for GM ignition key
General Motors Wins Ruling Shielding It From Most Claims Over Ignition Flaw

Despite the "Valukas Report" which established see no evil  stance of GM and its General Counsel which actively sought to know less rather than more about liability actions, victims of injuries due to the defective GM ignition key system have been barred from pursuing their actions because GM's debts were discharged in bankruptcy and the new company that emerged after reorganization did not carry that burden.

"New GM" - aware that it is in fact the same company - has hired the ADR icon Kenneth Feinberg to pay the claims on terms the company sets.

MAaryland will vote to raise damages cap on claims against government //TortsProf Blog

TortsProf Blog:

Late last month, the Maryland Court of Appeals upheld the cap on damages for claims against local governments.  The current cap is $200,000 per claim, with a maximum of $500,000 for any number of claims stemming from a single incident.  The House passed a bill raising those limits to $300,000 and $600,000.  Last week a Senate committee proposed raising the limits to $500,000 and $1,000,000.  The full Senate will vote on Friday.  Cecil Whig has the story.

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Are Event Studies in Securities Litigation Reliable? | The D&O Diary

Are Event Studies in Securities Litigation Reliable? | The D&O Diary

by Kevin LaCroix

"In its June 2014 opinion in the Halliburton case, the U.S. Supreme Court held that securities lawsuit defendants may introduce evidence at the class certification stage to try to show that the alleged misrepresentation on which the plaintiffs rely did not impact the defendant company’s share price. To show the absence of price impact, defendants typically will rely on “event study” methodology to analyze factors affecting a company’s share price.

The event study methodology has a well-established academic pedigree. But in a recent paper, two authors raise the question ask the question “Are event studies in securities litigation reliable?”


In their March 19, 2015 paper, “Event Studies in Securities Litigation: Low Power, Confounding Effects, and Bias” (here), Duke Business School Professor Alon Brav and J.B. Heaton of the Bartlit, Beck, Herman, Palanchar, & Scott law firm identify several problems in the way event studies are used in securities litigation. Their longer academic paper is summarized in a shorter April 14, 2015 post on the CLS Blue Sky Blog (here).


Event studies are used in securities litigation to try to answer two questions: First, was an alleged misrepresentation or corrective disclosure associated with a price impact? Second, if there was a price impact, how much of it was caused by the alleged misrepresentation or corrective disclosure as opposed to other, unrelated factors?"

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Wednesday, April 15, 2015

Despite the Negativity, Revised Patent Laws Improve the System //National Law Journal

Op-Ed: Despite the Negativity, Revised Patent Laws Improve the System:

by PeterC.Pappas //National Law Journal

 "When the America Invents Act was enacted in 2011, stakeholders cheered this major reform of the patent system. Negotiated and drafted with extensive involvement from patent holders and patent lawyers, the act established postgrant review proceedings to be conducted by expert administrative judges within the U.S. Patent and Trademark Office. These three new proceedings were touted as more cost-effective and quicker alternatives to litigation — making it easier to challenge, and invalidate, certain low-quality patents.

Improperly issued patents are often used abusively by patent trolls against startups and others, and the America Invents Act created mechanisms for taking bad patents out of circulation.
But things have changed. These post­issuance proceedings are now under attack, often by the same entities that helped create them. The main target of criticism has been inter partes review, which allows an issued patent to be challenged, but only on the ground that it is not novel or nonobvious — in short, that it was not truly inventive.
These popular and effective proceedings have been labeled "death squads" of patent rights, and accused of bias against patent holders.

Legislation has even been introduced to curtail these proceedings — all based on inaccurate and misleading statistics on invalidation rates, faulty inferences and conjecture.
Let's look at the facts. Some have ­complained that the inter partes review proceeding is more widely used than expected. Much has also been made of allegedly too high invalidation rates. It is sometimes wrongly asserted that 80 percent of patents are being invalidated. But the critics of inter partes review fail to point out that these proceedings were ­specifically designed to deter challenges to good patents.

First, the Patent Trial and Appeal Board only institutes proceedings if it has first determined that some of the challenged patents are "more likely than not" to be invalidated. Given this high bar, it should not be surprising that a high percentage of these patents are invalidated. If invalidation rates were low, that would indicate a real problem: It would reflect poorly on the board's decisions to institute proceedings, and would mean that too many good patents were being targeted for challenge.
These proceedings have a provision that discourages the filing of weak challenges. Once an inter partes review is instituted, the challenger is barred from seeking judicial review of any matter that could have been raised in the review. Filing an inter partes review without strong grounds will result in a denial of the petition, which effectively "gold plates" the challenged patent, rendering it very hard to attack in the future. In addition, the proceedings are designed to be costly and front-­loaded, another deterrent to weak challenges.

 Because these proceeding are engineered to take up only strong challenges, one would expect to see relatively high invalidation rates.
But the Patent Office's most recently published statistics do not support the meme of overly high invalidation rates. In reality, just more than 600 petitions (encompassing an aggregate 20,000 or so claims) have been concluded to date. The board has instituted proceedings against 68 percent of patent claims challenged, and declined to institute them against 32 percent. The board has invalidated 36 percent of these claims.

The invalidation rate of total claims challengers have sought to invalidate in these proceedings is even lower — 24 percent. So the board has actually "gold plated" far more patent claims than it has invalidated.

 Lastly, the legal landscape has changed dramatically. Recent court decisions have significantly raised the bar for patentability in key areas, making it easier to invalidate bad patents.
And it is unreasonable to criticize the board for implementing the law. Moreover, as the board's decisions are appealable to the U.S. Court of Appeals for the Federal Circuit, time will tell whether anything is flawed about these proceedings. But thus far the court has upheld the board's decisions. None of this is to suggest that the inter partes review proceedings are perfect.

From the time the Patent Office was charged with the huge task of implementing the law, Patent Office leadership acknowledged that it would not get everything right the first time. It conducted extensive outreach across the country to gather input from stakeholders, and its implementation of the America Invents Act has been a resounding success."

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Saturday, April 11, 2015

U.S. appeals court deals setback to Florida tobacco plaintiffs | Reuters

U.S. appeals court deals setback to Florida tobacco plaintiffs | Reuters: "(Reuters) - A U.S. appeals court ruling on Wednesday could make it more difficult for smokers suing tobacco companies in Florida to prove claims that cigarettes are dangerous and that tobacco companies were negligent.

The ruling by the 11th U.S. Circuit Court of Appeals reverses more than $800,000 in damages from R.J. Reynolds and Altria Group Inc unit Philip Morris USA Inc awarded in 2013 to Earl Graham, whose wife Faye, a longtime smoker, died in 1993 of lung cancer.

More broadly, the court said smokers who, like Graham, were originally part of a massive class action in Florida against the tobacco companies could not rely on findings from the class action trial to prove claims that cigarettes are defective and tobacco companies were negligent."

You can find the surprising opinion here.   The crux of the opinion is the last paragraph:

Cigarette smoking presents one of the most intractable public health
problems our nation has ever faced. It was not so long ago that anyone would walk a mile for a Camel: cigarette smoke once filled movie theaters, college classrooms, and even indoor basketball courts. For fifty years, the States and the federal government have worked to raise awareness about the dangers of smoking and to limit smoking’s adverse consequences to the greatest extent possible, all without prohibiting the sale of cigarettes to adult consumers. To that end, the State of
Florida may ordinarily enforce duties on cigarette manufacturers in a bid to protect the health, safety, and welfare of its citizens. But it may not enforce a duty, as it has through the Engle jury findings, premised on the theory that all cigarettes are inherently defective and that every cigarette sale is an inherently negligent act. So our holding is narrow indeed: it is only these specific, sweeping bases for state tort liability that we conclude frustrate the full purposes and objectives of Congress.
As a result, Graham’s Engle-progeny strict-liability and negligence claims are preempted, and we must reverse the District Court’s denial of judgment as a matter of law. For these reasons, the judgment of the District Court is REVERSED.

Case: 13-14590 Date Filed: 04/08/2015 Page: 50 of 50

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Friday, April 10, 2015

Prosecutor's RPC3.8 Duty Broader than Brady //D.C.Appeals CourtWhite Collar Crime Prof Blog

White Collar Crime Prof Blog

By Solomon Wisenberg

Rule 3.8(e) of the DC Rules of Professional Conduct states in pertinent part that: "The prosecutor in a criminal case shall not . . . intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused...except when the prosecutor is relieved of this responsibility by protective order of the tribunal."
The District of Columbia Court of Appeals upheld the position of D.C. Bar Counsel and the Board that Rule 3.8(e) is not synonymous with Brady v. Maryland. The Court declined to import Brady's materiality test into Rule 3.8(e), making it clear that at the pre-trial and trial stages  of a case, no prosecutor is fit to make a speculative materiality analysis. The rule is now clear. Any evidence that tends to negate the guilt of the defendant must be disclosed under the D.C. Rules of Professional Responsibility.
from the Appeals Court decision

This matter comes before us upon the Report and Recommendation of the Board on Professional Responsibility (“the Board”). The Board recommended that a 30-day suspension be given to Andrew J. Kline (“Kline”) after finding that Kline violated Rule 3.8 (e) of the District of Columbia Rules of Professional Conduct (“Rule 3.8 (e)”). Rule 3.8 (e) prohibits a prosecutor in a criminal case from intentionally failing to disclose to the defense any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused. Bar Counsel takes no exception to the Report and Recommendation of the Board. Kline argued, inter alia, that he did not violate Rule 3.8 (e) because his ethical duties are coextensive with the duties imposed under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Kline relies on the “material-to-outcome” standard recognized by the United States Supreme Court in Brady’s progeny to argue that a prosecutor cannot violate Rule 3.8 (e) unless there is a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial. We hold that Kline’s interpretation of Rule 3.8 (e), which incorporates a retrospective materiality analysis, is not the appropriate test for determining whether a prosecutor has violated Rule 3.8 (e). We also hold that Bar Counsel proved by clear and convincing evidence that Kline intentionally failed to disclose information in violation of the rule. However, we conclude that given the confusion regarding the correct interpretation of a prosecutor’s obligations under the rule, sanctioning Kline would be unwarranted.

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Bellwether Bone Loss Drug Case Settles

Bellwether Bone Loss Drug Case Settles

by Mary Pat Gallagher

 "One of only two cases to go to trial in New Jersey in litigation involving the bone loss drug Zometa has been settled on unknown terms just before a state appeals court was scheduled to issue a ruling.
The three-judge Appellate Division panel that had been expected to decide on April 9 whether to affirm or reverse the no-cause verdict won by Novartis against plaintiff Beverly Meng instead announced that day that “the issues in the dispute have been amicably resolved.”

Attorneys on both sides declined to discuss the settlement terms in Meng v. Novartis, or the fate of the 119 Zometa/Aredia cases that remained in New Jersey as of April 1.
The suits were designated as a mass tort in January 2008 and centralized in Middlesex County Superior Court.
Prior to that, in April 2006, the Judicial Panel on Multidistrict Litigation had consolidated federal actions around the country in the U.S. District Court for the Middle District of Tennessee.

The plaintiffs claim that the bisphosphonate drugs Aredia and Zometa, made by Novartis Pharmaceuticals Corp., of East Hanover, which are used to treat osteoporosis, caused osteonecrosis of the jaw, or “bone death,” according to court documents. They allege pain and disfigurement as a result, from loss of teeth and the jaw bone itself, which in some cases has to be surgically removed and a metal plate or rod inserted.

Similar allegations have been made about another bisphosphonate, Fosamax, which is manufactured by Merck. New Jersey’s Fosamax litigation—comprising 3,158 cases as of April 6—is also centralized in Middlesex County, before the same judge handling the Zometa/Aredia litigation, Jessica Mayer.
In the recently settled Zometa case, Meng sued in 2007, alleging that, except for about six months in mid-2006, she had monthly intravenous infusions of Zometa from July 2002 until November 2006, according to court documents.
It was prescribed to control bone metastases from breast cancer that had spread to her spine, court documents said. She stopped the Zometa in November 2006 around the time her dentist noticed exposed bone in her mouth. Osteonecrosis was diagnosed in February 2007.

Before Meng’s case went to trial in the spring of 2013 on a claim of failure to provide an adequate warning, Mayer dismissed other counts—for strict liability, design defect, breach of express warranty and consumer fraud—on a motion for summary judgment.
Mayer applied the law of Mississippi, where Meng lived while taking Zometa.
In allowing the failure-to-warn claim to proceed, Mayer discussed the warnings provided by Novartis regarding the bone death risk.
The first mention was a September 2003 package insert stating that there had been reports of osteonecrosis but the condition had “other well-documented multiple risk factors” and it was not possible to determine if it was connected to Zometa, court documents said.

A February 2004 revision of the warning added that most of the osteonecroses reported were in cancer patients who had other risk factors such as chemotherapy, corticosteroids, anemia and infection. It described those cases as “attendant to a dental procedure” and concluded “it is prudent to avoid dental surgery.”
An August 2004 update mentioned that the majority of instances were associated with tooth extraction and many people had signs of local infection, according to court documents.

The warning recommended having a dental examination before taking the drug and avoiding invasive dental procedures while on it.
That warning was the one in effect when Meng had the dental procedure that allegedly triggered osteonecrosis, according to Mayer’s summary judgment opinion.
Mayer found Meng’s evidence sufficient to raise an issue of fact as to adequacy.
Meng’s labeling expert, Dr. Suzanne Parisian, criticized the warning as “‘misleading’” because of the associations it drew to other risk factors, according to Mayer.

In addition, Meng’s doctor, Louis Puneky, testified that if he had better understood the risks, he would have prescribed the Zometa differently, according to Mayer. He said he would not have kept Meng on Zometa for four years and probably after two years would have “‘backed down on the dosage to maybe every three months.’”"

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Thursday, April 9, 2015

Appomattox: How did Ulysses S. Grant become an embarrassment of history and Robert E. Lee a role model?

Appomattox: How did Ulysses S. Grant become an embarrassment of history and Robert E. Lee a role model?

by Jamelle Bouie

"One hundred fifty years ago, at the courthouse in Appomattox, Virginia, Ulysses S. Grant won the Civil War. His chief opponent, Gen. Robert E. Lee of the Confederate States, had surrendered, all but ending the rebellion that claimed hundreds of thousands of lives but freed millions more.

But this was just the beginning of Grant’s career. Three years later, after Abraham Lincoln’s assassination and the terrible tenure of Andrew Johnson, he was elected president and served two terms, leaving office as a celebrated statesman. Afterward, he would manage a bank, lose his wealth, and die from cancer, although not before penning the greatest memoir of any former president. But this isn’t the end of his story; Grant would die a second death of sorts, as opponents reduced his life to its worst qualities: His bloody tactics came to the forefront, as did his drinking and the corruption in his administration. There are few monuments to Grant, and they are mostly ignored."

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BP says the Gulf is A.O.K.—this shrimper begs to differ

Sarah Craig

BP says the Gulf is A.O.K.—this shrimper begs to differ

by Sarah Craig and Rocky Kistner

"In 2010, NRDC partnered with StoryCorps and Bridge the Gulf to tell stories of people living through the Deepwater Horizon disaster. As the five-year mark approaches, onEarth revisited Gulf residents for an update. First of four parts.

Acy Cooper is tough as nails. He's a third-generation shrimper, born in the small fishing town of Venice, found about 80 miles south of New Orleans. As vice president of the Louisiana Shrimp Association, Cooper has his finger on the pulse of the bayou’s lucrative fishing industry. The harvest, however, hasn’t been so bountiful since BP’s Deepwater Horizon exploded on April 20, 2010, releasing as much as 200 million gallons or so of crude into the Gulf of Mexico.

Now, five years later, Cooper and his family, consisting of three kids and nine grandchildren, are struggling to make ends meet. BP’s massive PR campaign touting the region’s return to normalcy does not play well in these parts. Cooper says fishing catches are down by a third, and several of his fellow fishermen complain of inadequate compensation from the oil company—many took quick cash payments after their claims became bogged down with paperwork. Now they have little financial support if business conditions don’t take a turn for the better soon.

The signs aren’t encouraging. As his friends lose their homes and shrimp come in with massive tumors, black gills, and no eyes, Cooper worries the community will continue to deteriorate if fishing doesn’t return to normal—for real."

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