Saturday, July 19, 2014

Jury Awards $23.6 Billion in Florida Smoking Case - NYTimes.com

Jury Awards $23.6 Billion in Florida Smoking Case - NYTimes.com:

by Frances Robles



MIAMI — A jury in northwestern Florida awarded a staggering $23 billion judgment late Friday against the country’s second-largest tobacco company for causing the death of a chain smoker who died of lung cancer at the age of 36.
The company, the R. J. Reynolds Tobacco Company, promised a prompt appeal.
Michael Johnson Sr. died in 1996 after smoking for more than 20 years. In 2006, his widow, Cynthia Robinson, of Pensacola, sued R. J. Reynolds the maker of the Kool brand cigarettes her husband had smoked, arguing that the company had deliberately concealed the health hazards its product caused.
The four-week trial ended Wednesday. The jury deliberated for 18 hours over two days, first awarding $17 million in compensatory damages and then emerging at 10 p.m. Friday with a $23.6 billion punitive judgment.


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A last will and testament for freedom | National Catholic Reporter

Freedom riders' bus in flames, 1961
A last will and testament for freedom | National Catholic Reporter:

by Alex Mikulich  |  Jul. 19, 2014

 At a time when there seems to be deepening conflict over the meaning of freedom, this summer, the 50th anniversary of the Civil Rights Act, offers a fresh opportunity to reflect upon the sacrifices made to achieve freedom. The recently released film "Freedom Riders" teaches us about the deep yearning of African-Americans for the full human flourishing of everyone.

Take the example of Diane Nash, one of the student leaders trained in nonviolence under the tutelage of the Rev. James Lawson at Fisk University in 1959-60. Alongside John L. Lewis, among others, Nash helped lead the nonviolent sit-ins in Nashville, Tenn., in early 1960.

On May 14, 1961, Ku Klux Klan members firebombed a Freedom Rider bus outside Anniston, Ala., intending to burn to death everyone inside. Both Alabama Gov. John Patterson and Birmingham Police Chief Bull Connor declared that they would not protect the Freedom Riders from violence.

Attorney General Robert F. Kennedy responded by sending John Seigenthaler, his assistant, to ensure that the Freedom Riders made it safely from Birmingham to New Orleans after the firebombing.

 In a historic telephone conversation on May 16, 1961, Seigenthaler, with all the power of his position, commanded Nash and other Freedom Riders to end the bus rides in order to prevent loss of life. Seigenthaler recalls the conversation with Nash like this:

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"You know that spiritual -- 'like a tree standing by the water, I will not be moved'? She would not be moved. And ... soon I was shouting, 'Young woman do you understand what you are doing? ... Do you understand that you're gonna get somebody killed?' "

 After a pause, Nash replied to Seigenthaler: "Sir, you should know, we all signed our last wills and testaments last night before they left [on the bus for Birmingham]. We know someone will be killed. But we cannot let violence overcome nonviolence."

Seigenthaler concludes: "That is virtually a direct quote of the words that came out of that child's mouth. Here I am, an official of the United States government, representing the president and the attorney general, talking to a student at Fisk University. And she in a very quiet but strong way gave me a lecture.""



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Friday, July 18, 2014

DePuy Hip Settlement – ASR Hip Payout Status

DePuy Hip Settlement – ASR Hip Payout Status: "SR hip implant plaintiffs may soon be recovering funds under the terms of the DePuy hip settlement, according to a status report released last month. Legal counsel for DePuy indicates that just over 98 percent of eligible ASR hip recipients have enrolled in the settlement program, which will hopefully resolve some 12,000 DePuy hip lawsuits against the manufacturer.
At the heart of the litigation are claims that the ASR XL Acetabular Hip System is defective and unreasonably dangerous, causing patients to suffer severe and life-altering complications. Lawsuit filings have escalated following a global recall of ASR devices in 2010, after it was found that metal components would grind together, releasing toxic ions into the body."



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Wednesday, July 16, 2014

N.J. Judge OKs $11 Mil. Award in Pelvic Mesh Mass Tort | New Jersey Law Journal



Pelvic mesh


N.J. Judge OKs $11 Mil. Award in Pelvic Mesh Mass Tort | New Jersey Law Journal:

A Johnson & Johnson subsidiary has lost a bid to upend an $11.1 million verdict in the first bellwether trial over allegedly harmful pelvic mesh implants.
Atlantic County Superior Court Judge Carol Higbee on Tuesday denied motions by Ethicon for a new trial and judgment notwithstanding the verdict that would have struck a jury award of $3.35 million in compensatory damages and $7.76 million in punitive damages from early last year.
At trial, “there was strong evidence presented and multiple sources of evidence that in fact there were many problems with this product,” Higbee said in court, according to a preliminary transcript.
The decision “only marks the start of the appeals process,” Ethicon spokesman Matthew Johnson said in a statement. “We will be filing an appeal in this case as we believe the jury’s verdict and damage awards were not supported by the evidence presented at trial.”
The litigation, In re Pelvic Mesh/Gynecare Litigation, No. 291, encompasses thousands of suits claiming injuries from the Gynecare Prolift pelvic mesh product, created by Somerville, N.J.-based Ethicon to treat organ prolapse and urinary incontinence, and marketed beginning in 2002.


Read more: http://www.njlawjournal.com/id=1202663447586/NJ-Judge-OKs-11-Mil-Award-in-Pelvic-Mesh-Mass-Tort#ixzz37h02N3em


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N.J. Judge OKs $11 Mil. Award in Pelvic Mesh Mass Tort | New Jersey Law Journal

N.J. Judge OKs $11 Mil. Award in Pelvic Mesh Mass Tort | New Jersey Law Journal: "A Johnson & Johnson subsidiary has lost a bid to upend an $11.1 million verdict in the first bellwether trial over allegedly harmful pelvic mesh implants.
Atlantic County Superior Court Judge Carol Higbee on Tuesday denied motions by Ethicon for a new trial and judgment notwithstanding the verdict that would have struck a jury award of $3.35 million in compensatory damages and $7.76 million in punitive damages from early last year.
At trial, “there was strong evidence presented and multiple sources of evidence that in fact there were many problems with this product,” Higbee said in court, according to a preliminary transcript.
The decision “only marks the start of the appeals process,” Ethicon spokesman Matthew Johnson said in a statement. “We will be filing an appeal in this case as we believe the jury’s verdict and damage awards were not supported by the evidence presented at trial.”
The litigation, In re Pelvic Mesh/Gynecare Litigation, No. 291, encompasses thousands of suits claiming injuries from the Gynecare Prolift pelvic mesh product, created by Somerville, N.J.-based Ethicon to treat organ prolapse and urinary incontinence, and marketed beginning in 2002."



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Monday, July 7, 2014

G.M. Victim Compensation: How the Plan Works - NYTimes.com

G.M. Victim Compensation: How the Plan Works - NYTimes.com: ""

Earlier this year, after General Motors announced a recall of 2.6 million Chevrolet Cobalts and other small cars because of a fatal flaw in an ignition switch, it hired Kenneth R. Feinberg, an expert on victim payment funds, to develop a compensation plan for those killed or injured by the defect.
Now Mr. Feinberg has announced the terms and mechanics of the plan, which could cost the automaker billions of dollars. Those who agree to accept payment under Mr. Feinberg’s plan will not be able to sue G.M. for punitive damages.
Here is a look at the basic provisions....


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Syllabus - Business Torts - archive

Business Torts - Syllabus     evolving Spring 2012  updated April 4, 2012
Mondays 2:00 - 3:50  Room 215    

Prof. George Conk
Adjunct Professor of Law & Senior Fellow
Stein Center for Law & Ethics
gconk@law.fordham.edu
Room 409 (by appointment)

Except for the assigned treatise - Restatement of Torts, 3rd, Unfair Competition - course materials will be posted on TWEN and/or on my Torts Today blog.

Note that some material will be on pages (right hand side) and some will be in blog posts.  As I refine and develop the syllabus or as there are new developments I will update the syllabus page or the topic page - or do a post on Torts Today.   I suggest you select the RSS feed so that you get notice of new posts.

Generally I will post on TWEN edited cases (some of them selected and excerpted by Prof. Jay Feinman, Rutgers-Camden whose course design I am loosely tracking and from whose excellent editing we will benefit).

The assignments for the first two weeks are on TWEN.  The edited versions of the introductory cases and the Bustamonte problem are by Prof. Feinman).

Weeks 3, 4 & 5  we will discuss the BP Gulf of Mexico oil spill.  Those materials are on Torts Today.

Week 6 we will discuss the SEC enforcement action against Citigroup - the settlement of which Judge Rakoff refused to approve.

Weeks 7 & 8 we will look at third party claims against auditors for negligence and against lawyers and auditors for aiding and abetting  fraud.  That material is on Torts Today.

The bulk of the rest of the semester we will focus on unfair competition - particularly trademark infringement.

If we stay on track the final class will look at malpractice claims against lawyers.
- GWC


Week 1
Introduction 
Bustamonte Problem (JF)
Channel Master v. Aluminum Limited Sales 4 NY 2d 403 (1958)
Imperial Ice Co. V. Rossier, 18 Cal. 2d 33 (1941)
Doliner v. Brown, 21 Mass. App. Ct. 692 (1986)
Ely-Norris Safe Co. V. Mosler Safe Co. 7 F. 2d 603 (2d Cir. 1925)
Mosler Safe Co. V. Ely Norris Safe Co., 273 U.S. 132 (1927)

Week II
The Economic Loss Rule
3rd Restatement - Liability for Economic Harm
Unintentional Infliction of Economic Loss - draft black letter, Council draft 1.1

Bustamonte Problem (JF)
The cases below are all excerpted on TWEN.
Alloway v. General Marine Industries, 149 N.J. 620 (1997)
People Express Airlines, Inc. V. Consolidated Rail Corp., 100 N.J. 246 (1985)
Air Products and Chemicals, Inc. V. Eaton metal Products Co., 256 F.Supp. 329 (E.D. Pa. 2003)
Southwestern Bell Tel. V. Delanney, 809 S.W. 2d 493 (TX 1991)
DCR, Inc. V. Peak Alarm 663 P. 2d 433 (UT 1983)

Week III & IV
Limits of recovery of economic loss in tort: the BP Deepwater Horizon Oil Spill

see BP Deepwater Oil Spill page on Torts Today.

Read:
Oil Pollution Act of 1990 - (OPA) key provisions
Memorandum by Prof. John Goldberg to Kenneth Feinberg (BP page)

The current moment: Jurist

GCCF  - draft Final Rule - proposed methodology - November 10, 2010
Public comment by BP
Supplemental Comments by BP, July 7, 2011
GCCF - Modification to Final Claims Methodology August 16, 2011
GCCF - Second Modification to Final Claims Methodology - November 30, 2011
GCCF - Payment Options, Eligibility and Substantiation Criteria, and Final Payment Methodology February 18, 2012

Recommended: 
Mississippi College of Law symposium: Beyond the Horizon: The Gulf Oil Spill Crisis  The MCL symposium articles below can be found at the link above.
David W. Robertson,  THE OIL POLLUTION ACT'S PROVISIONS ON DAMAGES FOR ECONOMIC LOSS, 30 Miss. C.L. Rev. 157 (2011)
OPA AND ECONOMIC LOSS: A REPLY TO PROFESSOR ROBERTSON, John C.P. Goldberg, 30 Miss. C. L.Rev. 203 (1911)
David W. Robertson, OPA AND ECONOMIC LOSS: A RESPONSE TO PROFESSOR GOLDBERG, 30 Miss. C.L. Rev. 217 (2011)

Background: Federal Judicial Center - Reference Guide on Estimation of Economic Losses in Damages Awards, by Robert E. Hall and Victoria A. Lazear 

Week V
BP's liability , continued
Regulation, global settlement and judicial management
(see BP page)

Conk - Diving Into the Wreck (17 Roger Williams University L. Rev. 2012)
Sherman - BP Oil Spill and Evolving Supervision of Multidistrict litigation Judges, 35 Mississippi College Law Review 237 (2011)
Judge Carl Barbier - counsel fees holdback order December 28, 2011
from the GCCF website:



Week VI
Fraudulent Interstate Transactions - Investment Bankers


SEC - Citigroup proposed settlement of enforcement action
Fraudulent Interstate Transactions (Sections 17(a)(2) and (3) Securities Act of 1933) 15 U.S.C. 77q
SEC v. Citigroup Global Markets complaint and memorandum in support of proposed settlement
Judge Rakoff's 10/27/11 Order and questions posed for hearing on SEC-Citigroup proposed settlement

Judge Rakoff's rejection of SEC settlement with Citigroup 1:11-cv-07387-JSR 
SEC response to Rakoff rejection of settlement
Kevin LaCroix (D&O) Diary) -  commentary on Rakoff's ruling10/28/2011SEC v. Brian H. Stoker complaint
SEC settlement announcement - and related documents
SEC statement and Notice of Appeal, 12/15/11
Rakoff Order denying request for a stay.
Prof. Peter Henning (Dealbook) commentary on SEC - Citigroup settlement rejection


for background information and further developments, see TortsToday SEC v. Citigroup page


Week VII

Third Party Liability - Auditors

Restatement Torts, 2d Sec. 552 Information Negligently Supplied for the Guidance of Others
Restatement Torts, 2d,  Sec. 874, Breach of fiduciary duty
Restatement, 3rd - Agency - excerpts 
Restatement 3rd - Law Governing Lawyers § 51 duty to certain nonclients

Ultramares Corp. v. Touche, 255 NY 170, 182-3 (1931)
Accountant  Liability Act, N.J.S.A. 2A:53A-25
Cast-Art Industries v. KPMG  NJ Supreme Court(read the opinion)


Week VIII

Third party liability: Aiding & Abetting/Imputation of Liability for Fraud
Restatement 2d, Torts § 875, 876

N.J.S.A.  49:3-71(a) - Action for Deceit in sale of securities

Cases: 

Oster v. Kirschner, 905 N.Y.S.2d 69 (1st Dept. July 6, 2010) (or see Receiver's webpage)
Kirschner/Trustee of Refco Litigation Trust v. KPMG, LLC (15 N.Y.3d 446  2010) (See  Receiver's webpage  for background)
NCP Litigation Trust v. KPMG, 187 NJ 353 (2006) (TWEN)


In re Refco Securities, 503 F. Supp. 2d 611 (2007)  (excerpt from opinion allowing action against Grant Thornton, LLP to proceed) (optional)

Slides/lecture: the 10(b)(5) Securites Fraud Action

March 26

Legal Malpractice

NY Pattern Jury Instructions 2:152
Conklin v. Hannoch Weissman, 145 N.J. 395(1996)
Viner v. Sweet, 30 Cal. 4th 1232 (2003)
Restatement of the Law Governing Lawyers, - Lawyers' Civil Liability (excerpts)
Saffer v. Willoughby, 143 N.J. 256 (1996) 


April 2
Trademark
Introduction to subject matter

Lanham Act - Statutory Excerpts (See Trademark page)

Restatement of Unfair Competition (ALI, 1995)
black letter rules - subject matter of trademark sections 9 - 17
black letter rules on acquisition and priority, infringement, defenses, remedies §§ 18 - 37
Discussion problem: Weber (JF)

April 11
Trademark, cont’d

Acquisition, Registration Infringement

The Lanham Act (1946, as amended) 15 USC 1051, et seq.

Registrable marks
15 U.S.C. 1051

False designation of origin - Dilution
15 U.S.C. 1125

Remedies for infringement
15 U.S.C. 1114 - 1127 

Remedies - Profits, damages and costs
15 U.S.C. 1117

9th Circuit Jury Charge Manual Sections 15.0 - 15.27 - Trademark
(read the instructions - comments optional)

Likelihood of Confusion Factors (Sleekcraft test) 15.16
Strength (Distinctiveness of Mark) 15.17
Zazu Designs v. L'Oreal, USA, 979 F. 2d 499 (7th Cir. 1992)

The App Store Controversy - read blog post and Microsoft objection

April 16
Trademark, cont’d

Restatement: Defenses and Remedies

Damages and Attorneys Fees

Skydive Arizona v. Quattrocchi, 9th Circuit (2012)


Problem: Alumet Supply v. Alumet Mfg. (Attorneys fees) (TWEN)

April 23
Misappropriation of Trade Values

International News Service v. Associated Press, 248 U.S. 215 (1918)

Restatement, 3rd, Unfair Competition §§ 38 - 45
Problem: MC (JF)
California Trade Secrets Act

Sunday, July 6, 2014

FDA Aims to Develop E-cigarette Standards, Nicotine Policy

FDA Aims to Develop E-cigarette Standards, Nicotine Policy:

WASHINGTON (Reuters) - The U.S. Food and Drug Administration is working to develop strong product standards for electronic cigarettes and other nicotine delivery devices that will protect public health and enable the agency to withstand legal challenges, its tobacco chief said on Wednesday.
Mitchell Zeller, director of the FDA's Center for Tobacco Products, said the agency is exploring potential product standards in the areas of addiction, toxicity and product appeal as it prepares to gain regulatory authority over electronic cigarettes and other nicotine-delivery devices.
The establishment of product standards is one of five priorities for the division over the next few years, Zeller said, outlining them publicly in the most comprehensive manner to date.
They include putting in place regulations for approving new products and monitoring them after they reach the market, ensuring that the agency has in place a strong compliance and law enforcement presence in every state, public education and the formulation of a FDA-wide nicotine policy that recognizes some products are less risky than others.


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Wednesday, July 2, 2014

The Civil Rights Act's Repudiation of the State Action Doctrine // Ackerman // Balkinization

Conservatives see in the 14th Amendment a limitation of government action to protect the rights of citizens. Since the 1883 Civil Rights Cases the state action requirement has been embedded in discussions of limits of federal power. Bruce Ackerman explains that the Civil Rights Act of 1964 - fifty years old today- eroded the significance of that requirement. Relying on the commerce clause of the constitution, it greatly expanded the scope of governmental authority to protect people from oppression. - gwc
Balkinization: The Civil Rights Act's Repudiation of the State Action Doctrine:
by Bruce Ackerman // Yale Law School
"Fifty years ago today, Lyndon Johnson signed the Civil Rights Act into law, marking a decisive transformation in the institutional dynamics propelling the civil rights revolution forward. From Brown in 1954 through Kennedy's assassination in 1963, the Warren Court had assumed the burden of constitutional leadership, with the political branches giving it their often-reluctant support. As I argue in We the People: the Civil Rights Revolution, this was the first time in American history that the Court had played such a leadership role. But this role came to an end with the entry of Lyndon Johnson into the White House. During the next decade, the higher lawmaking system developed in a more familiar way: As in the cases of Jefferson, Jackson, Lincoln, and Roosevelt, the presidency joined with a mass movement to claim a mandate from the People for a decisive constitutional breakthrough -- with the voters endorsing this transformation in a series of elections from 1964 through 1970."

Sunday, June 29, 2014

Reparations, from Minnesota to Mississippi - James Fallows - The Atlantic

What is the proper remedial response to the legacy of racial discrimination, de jure and de facto in America?

Reparations, from Minnesota to Mississippi - James Fallows - The Atlantic:

monument to the Duluth, Minnesota lynchings of 1930


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