OTHERWISE: Candor to the tribunal: SEC, Citigroup and Judge Rakoff

OTHERWISE: Candor to the tribunal: SEC, Citigroup and Judge Rakoff:

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Fund will be created to reimburse plaintiff attorneys working on BP litigation | NOLA.com

Fund will be created to reimburse plaintiff attorneys working on BP litigation | NOLA.com:

U.S. District Judge Carl Barbier has granted a hotly contested motion to create a fund that could eventually reimburse plaintiff attorneys for their work in the Gulf of Mexico oil spill litigation over the objections of several parties to the case.

Barbier's order does not actually award "common benefit fees," or the amount of money that the committee of plaintiff attorneys pressing the case for the benefit of all claimants would get to compensate them for their time and expenses.
Rather, it sets up a fund that would ultimately pay such fees, should they be awarded, and requires defendants and states in the case to begin holding back a percentage of any settlements as contributions to the fund.

A percentage of settlements reached through the Gulf Coast Claims Facility, the $20 billion fund administered by Washington mediator Kenneth Feinberg, will also be required to be contributed to the fund.

The order is HERE
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Feinberg Adjusts Payment Methodology to Fishermen Due to Uncertainty : Louisiana Seafood News

BP's claim administrator Kenneth Feinberg has doubled the offer of permanent damages offered in the Gulf Oil spill cases: from 2 times the 2010 loss to four times the 2010 season loss. Louisiana Seafood News - GWC

Feinberg Adjusts Payment Methodology to Fishermen Due to Uncertainty : Louisiana Seafood News:

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Doing the Math on Louisiana’s 2011 Shrimp Season : Louisiana Seafood News

Doing the Math on Louisiana’s 2011 Shrimp Season : Louisiana Seafood News:

A look at the numbers from a shrimp boat captain's perspective. - GWC

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Bullet train crash: 54 punished - china Daily

Wenzhou train crash 'due to designfailures'|Society|chinadaily.com.cn:

"BEIJING - Design flaws, sloppy management and the mishandling of a lightning strike that crippled equipment were behind a bullet train crash in July that killed 40 people, an investigation has found.

A total of 54 people, held accountable for the fatal crash, will face punishment, an executive meeting of the State Council said on Wednesday.

On July 23 a bullet train rammed into another stranded on the track after being hit by lightning near the coastal city of Wenzhou in East China's Zhejiang province.

There were "serious design flaws" in the control equipment used at Wenzhou South Railway Station, the report released on Wednesday said.

The equipment was designed by the Beijing National Railway Research and Design Institute of Signals and Communication, a subsidiary of the China Railway Signal and Communication Corp.

Investigators believe that the design defects occurred because of the institute's sloppy management and the corporation's failure to fulfill its duty."

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Record $285 ml fee award is Strine's message to plaintiffs' bar

From the Chancery Court in Delaware the message is: bring hard cases, do well, get paid well. - GWC

Record $285 ml fee award is Strine's message to plaintiffs' bar:

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As Second Circuit Holds Citi Case, Rakoff Slams the SEC - Law Blog - WSJ

The SEC has asked the 2d Circuit Court of Appeals for a stay pending appeal from the rejection of its settlement agreement with Citigroup Global Securities, and apparently has gotten it - at least until January 17.   District Judge Jed Rakoff - who rejected the proposed settlement - ordered SEC to proceed to a June trial, consolidating the action with an SEC negligence claim against individual - based on the same occurrences.

Rakoff denied the stay and explained that the SEC cannot show irreparable harm from being forced to proceed to trial in a case it had agreed to settle. Joe Palazzolo explains and provides links to key documents. - GWC

As Second Circuit Holds Citi Case, Rakoff Slams the SEC - Law Blog - WSJ:

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Judges Cancel Case Assignment Experiment - Law Blog - WSJ

Is this the `Rakoff Rule'?

OTHERWISE: Judges Cancel Case Assignment Experiment - Law Blog - WSJ:

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Judges Cancel Case Assignment Experiment - Law Blog - WSJ

Is this the `Rakoff Rule'?

OTHERWISE: Judges Cancel Case Assignment Experiment - Law Blog - WSJ:

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Federal judge blocks portions of South Carolina immigration law - Jurist

Confederate flag over So.Carolina capitol

[JURIST] A judge for the US District Court for the District of South Carolina [official website] on Thursday blocked [order, PDF] portions of South Carolina's controversialimmigration law [SB 20]. The legislation requires police officers to check a suspect's immigration status during a lawful stop, seizure, detention or arrest if they believe the person may be in the country illegally and requires businesses to participate in the E-Verify [official website] system.

 

It was challenged by a coalition of civil rights groupsand the US Department of Justice (DOJ) [JURIST reports], which both argued that it is unconstitutional, invites racial profiling and interferes with federal law. Judge Richard Gergel blocked the provision that requires police to check immigration status, finding, "[t]his state-mandated scrutiny is without consideration of federal enforcement priorities and unquestionably vastly expands the persons targeted for immigration enforcement action. He also blocked the provision that outlaws harboring or transporting an illegal immigrant, finding a likelihood of irreparable harm. The law was set to take effect January 1.JURIST - Paper Chase: Federal judge blocks portions of South Carolina immigration law:

The New York Times report is HERE
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Firm hired to evaluate Ken Feinberg's oil spill claims process | NOLA.com

Despite the campaign rhetoric that the Obama administration is committed to excessive regulation, it finds itself without an established mechanism to govern or assess the response by BP to its statutory obligation to pay compensation for both interim and permanent losses to those who suffered losses due to the Gulf oil spill which damaged natural resources and led to widespread economic dislocations.   The Times-Picayune reports: - GWC

The U.S. Department of Justice on Wednesday selected a New York consulting and investigations firm to evaluate Kenneth Feinberg's oil spill claims process. Assistant U.S. Attorney General Thomas Perrelli sent a letter Wednesday to BDO Consulting's offices in New York and Houston urging the firm to immediately begin its review and report its findings by March.

Houma Courier archive, via APKenneth Feinberg at a meeting in Lafourche Parish in March.

"Where it has performed well, the people of the Gulf deserve to know that they have been fairly served," Perrelli wrote, referring to the Feinberg-run Gulf Coast Claims Facility. "Where it has fallen short, we must take appropriate steps to ensure that victims of the oil spill are fairly treated and properly compensated."

Feinberg has welcomed the independent evaluation and already agreed to pay for it. That caused Perrelli to warn BDO that it must stay "fully independent" from the GCCF. "While Mr. Feinberg has agreed that the GCCF will pay the costs associated with the review, your work will be overseen and directed by the Department of Justice," the letter said.

Firm hired to evaluate Ken Feinberg's oil spill claims process | NOLA.com:


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PrawfsBlawg: Cavazos v Smith I

PrawfsBlawg: Cavazos v Smith I:

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Law Blog Expert Panel: Ex-Federal Judges on Rakoff's Rejection of Citi Pact - Law Blog - WSJ

Three judges weigh in on Judge Rakoff's rejection of the settlement between SEC and Citigroup.  Following the WSJ's idea of balance they are: 1) Wrong.  2) Understandable but problematic (better left to legislative processes).  3) Within the judge's discretion under the Federal Rules of Civil Procedure, R. 23.
Law Blog Expert Panel: Ex-Federal Judges on Rakoff's Rejection of Citi Pact - Law Blog - WSJ:
A fourth approach is the laudatory one taken by the New Jersey Law Journal Editorial Board:

The Securities and Exchange Commission is tasked with the responsibility to investigate unlawful conduct of corporate America. If it is determined that regulated businesses have engaged in unlawful activity that has caused or contributed to the current depressed national economy, then they have a job to do.On Oct. 19, the SEC filed two lawsuits in the Southern District of New York: one accusing Citigroup Global Markets Inc. of a substantial securities fraud and the other accusing an identified employee of involvement in that fraud. Based on four years of accumulated information, the SEC asserted that in early 2007, when the market for mortgage-backed securities was beginning to weaken, Citigroup created a billion-dollar fund that allowed it to dump questionable assets on misinformed investors by representing that the fund's assets were attractive investments. Citigroup included within the portfolio a substantial percentage of negatively projected assets and had taken a short position in the very assets that it helped select, the SEC contended.

While the suit against Citigroup alleged negligence, the suit against the individual employee set forth that Citigroup actually knew that placing the liabilities of the fund would be difficult if it disclosed to potential investors its intention to use the fund to short a hand-picked set of poorly rated assets.Contemporaneously with the filing of those complaints, the SEC presented to District Judge Jed Rakoff a proposed consent judgment, represented to be the settlement between the SEC and Citigroup, not the individual employee.

The economic terms of the settlement were that Citigroup was to disgorge $160 million in net profits realized from the transaction, plus $30 million in interest, and to pay a civil penalty of $95 million, for a total of $285 million. When put into perspective, this sum of money is very small. Citigroup made a $3.8 billion profit in the third quarter of 2011 alone. The investors, meanwhile, lost more than $700 million.

The settlement provided that Citigroup would neither admit nor deny any of the allegations of the complaint and was enjoined from violating the securities law in the future.Private parties have the right to enter into settlement agreements, whether or not they are fair and reasonable. But Rakoff refused to approve this settlement between a governmental agency and a regulated corporation without being provided any proven or admitted facts upon which he could exercise some independent judgment.***

It appears to have been the government's and Citigroup's intention to walk into court and have their agreement rubber-stamped. Rakoff recognized that substantial deference was due the SEC but correctly observed that he had to exercise independent judgment to determine the settlement to be fair, reasonable, adequate and in the public interest. The government took the extraordinary position that the SEC is the sole determiner of what is in the public interest regarding consent judgments in its cases. But as Rakoff pointed out, that is not the law.

Rakoff needed some knowledge of the underlying facts to avoid being a "mere handmaiden to a settlement privately negotiated on the basis of unknown facts, while the public is deprived of ever knowing the truth in a matter of obvious public importance." He was critical of a consent agreement wherein there was no admission of the underlying allegations. Not only did the settlement bring no benefit to the defrauded investors; the consent judgment would have absolutely no evidentiary value in any claim or suit an investor might thereafter lodge.

Many judges would have acquiesced and approved the settlement. The SEC claims it is devoted to the protection of the investors as well as to assisting them in the recovery of their losses. That appeared a fiction to Rakoff, who stated that "in any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth." Instead of approving the consent judgment, he consolidated both cases for trial next July.Rakoff's decision underscores the need for an independent judiciary. Our compliments to the court.

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The National Academy of Sciences has issued its Report on the Deepwater Horizon BP Oil Spill: Macondo Well-Deepwater Horizon Blowout:Lessons for Offshore Drilling Safety 
Authored by the Committee for Analysis of Causes of the Deepwater Horizon Explosion, Fire, and Oil Spill to Identify Measures to Prevent Similar Accidents to the Future -  National Academy of Engineering and National Research Council, it concludes that their were failures across the board.  The press release accompanying issuance declares:

Despite challenging geological conditions, alternative techniques and processes were available that could have been used to prepare the exploratory Macondo well safely for "temporary abandonment" -- sealing it until the necessary infrastructure could be installed to support hydrocarbon production, the report says. In addition, several signs of an impending blowout were missed by management and crew, resulting in a failure to take action in a timely manner. And despite numerous past warnings of potential failures of blowout preventer (BOP) systems, both industry and regulators had a "misplaced trust" in the ability of these systems to act as fail-safe mechanisms in the event of a well blowout.

BOP systems commonly in use -- including the system used by the Deepwater Horizon -- are neither designed nor tested to operate in the dynamic conditions that occurred during the accident. BOP systems should be redesigned, rigorously tested, and maintained to operate reliably, the report says. Proper training in the use of these systems in the event of an emergency is also essential. And while BOP systems are being improved, industry should ensure timely access to demonstrated capping and containment systems that can be rapidly deployed during a future blowout.  

 BP did not assert the $75 million cap on damages in the Oil Pollution Act - because it elected not to contest the issue of whether it had been reckless.  This report suggests that decision was wise.

S 1400 the Gulf Coast Restore Act

from a fact sheet supporting S.1400.  Introduced by Sen. Mary Landrieu (D-LA), in July 2011 the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2011 (RESTORE Act) is described below:

CRS Summary
Senate Report

What the RESTORE Act Does


Under current law, BP and others responsible
for last year’s oil spill will pay a Clean Water
Act (CWA) penalty for each barrel of oil spilled
into the Gulf.
Without action from Congress, those penalties
will go to unrelated federal spending, instead
of repairing the area damaged by the spill.
BP’s fines belong in the Gulf, where the
damage was done.
Two official reports on the spill – one
conducted by Navy Secretary and former
Mississippi Governor Ray Mabus, the other
from the bipartisan National Commission on
the Deepwater Horizon Oil Spill and Offshore
Drilling – recommended that CWA penalties
be dedicated to Gulf Coast restoration.

The RESTORE Act creates an essential
framework to manage and finance the
Gulf Coast recovery. Using 80% of the CWA
penalties from the Gulf oil disaster, the
RESTORE Act establishes a trust account to
restore both the economic and environmental
health of the Gulf Coast.


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S.E.C. Sues 6 Former Top Fannie and Freddie Executives - NYTimes.com

S.E.C. Sues 6 Former Top Fannie and Freddie Executives - NYTimes.com: "The Securities and Exchange Commission has brought civil actions against six former top executives at the mortgage giants Fannie Mae and Freddie Mac, saying that the executives did not adequately disclose their firms’ exposure to risky mortgages in the run-up to the financial crisis."
The complaints SEC v. Mudd, Dellavecchia and Lund

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BP to Get $250 Million in Gulf of Mexico Oil Spill Settlement - NYTimes.com

$250 million settlement in design defect claim by BP against the designer of the blowout preventer. - GWC
BP to Get $250 Million in Gulf of Mexico Oil Spill Settlement - NYTimes.com: "LONDON — The British oil company BP said Friday that Cameron International, one of its contractors in the oil well that burst last year in the Gulf of Mexico, had agreed to pay $250 million to settle claims related to the ensuing spill.
Cameron, based in Houston, designed and manufactured the so-called blowout preventer on the drilling rig, which failed to stop the oil from spilling. The settlement, which is BP’s fourth so far with companies that worked on some parts of the well, was not an admission of liability by either party, BP said."
BP and others in the industry pressed to cut safety testing.  Design defect issues are discussed in this article from the Christian Science Monitor.

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Deserted - death on the border

SEC files Notice of Appeal from Rakoff Rejection of Settlement

Robert Khuzami,  Director of Enforcement at the SEC issued today a statement and notice of appeal from the decision of Judge Jed Rakoff rejecting the SEC's proposed settlement with Citigroup.  The SEC Director said, in part:

The court’s new standard is at odds with decades of court decisions that have upheld similar settlements by federal and state agencies across the country. In fact, courts have routinely approved settlements in which a defendant does not admit or even expressly denies liability, exactly because of the benefits that settlements provide.

Arizona Sheriff’s Office Unfairly Targeted Latinos, Justice Department Says - NYTimes.com

Sheriff Joe Arpaio

Arizona Sheriff’s Office Unfairly Targeted Latinos, Justice Department Says - NYTimes.com:
by Marc Lacey
We have peeled the onion to its core,” said Thomas E. Perez, the assistant attorney general for civil rights...
"After an investigation that lasted more than two years, the civil rights division of the Justice Department said the sheriff’s office has “a pervasive culture of discriminatory bias against Latinos” that “reaches the highest levels of the agency.” The department interfered with the inquiry, the government said, prompting a lawsuit that eventually led Mr. Arpaio and his deputies to cooperate."

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Human Rights Watch accuses Alabama of violating constitution | Law | guardian.co.uk

Human Rights Watch accuses Alabama of violating constitution | Law | guardian.co.uk:

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Arizona v. United States : SCOTUSblog

The Supreme Court yesterday granted Arizona's petition for certification of the Ninth Circuit ruling sharply limiting enforcement of the state's controversial law addressed to undocumented aliens.

Arizona v. United States : SCOTUSblog

The four provisions at issue are:

** A requirement that police in making any stop or arrest to try to determine the individual’s legal right to be in the U.S., if the officer has a “reasonable suspicion” of illegality. If arrested, the individual cannot be released until his legal status is verified by the federal government. That is the law’s Section 2(B).

** A provision making it a crime under state law for an individual to intentionally fail to obtain and carry legal immigrant papers with him while in Arizona (Section 3).

** A provision making it a misdemeanor for an undocumented immigrant to apply for a job, publicly solicit a job, or actually work in Arizona (Section 5[C]).

** And, a provision that allows police to arrest without a warrant any person for whom the officer has “probable cause to believe” that the individual has committed any crime, anywhere, that would make that individual subject to being deported (Section 6).

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OTHERWISE: Newt Gingrich - overturning Marbury v. Madison and judicial review

OTHERWISE: Newt Gingrich - overturning Marbury v. Madison and judicial review:

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Health care schedule set : SCOTUSblog

Health care schedule set : SCOTUSblog:

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Derek Boogaard - A Boy Learns to Brawl - NYTimes.com

To what level of violence do hockey players consent? in high school? college? the NHL? international play? Should it matter?  The compelling story of Dereke Boogard - an "enforcer" on NHL teams, who died of a drug overdose with evidence of brain damage due to head trauma. - GWC

Derek Boogaard - A Boy Learns to Brawl - NYTimes.com:

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The Toxic Legacy of Raybestos-Manhattan Continues

Workers' Compensation: The Toxic Legacy of Raybestos-Manhattan Continues: "The epic toxic legacy of asbestos brake manufacturer, Raybestos-Manhattan Inc., a/k/a Manhattan Rubber and Raymark, continues as waste from its former plants plagues present communities. Raybestos had several production plants in the US including Connecticut, South Carolina and Passaic, New Jersey.

Asbestos, labeled the "miracle mineral," was a known carcinogen and linked to: asbestosis, lung cancer and mesothelioma, a rare and fatal cancer. The company with knowledge of that information, as revealed in the famous "Sumner Simpson papers," ignored the available science and continued to manufacturer asbestos products including: bowling balls, radiator hoses and brake linings, as well as other products.

While the Raybestos is no longer producing asbestos products, the plants sites continue to be a problem to the communities as a toxic legacy continues."

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BP Oil Spill - Vanderbilt Law Review

Rigs, Risk & Responsibility

Concurring Opinions » Vanderbilt Law Review, Volume 64, Number 6 (November 2011):

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Judge Rakoff rejects SEC - Citigroup Settlement

The rejection of the proposed SEC v. Citgroup consent judgment has, of course, been covered profusely.  So I'll just provide some useful links HERE , a link to Michael Rothfeld's profile of Judge Jed Rakoff, who is on his way to becoming the first judicial folk hero of the Great Recession, and an excerpt from the opinion:

"Finally, in any case like this that touches on the transparency of our financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interst in knowing the truth.  In much of the world, propaganda reigns and truth is confined to secretive, fearful whispers.  Even in our nation, apologists for suppressing or obscuring the truth may always be found.  But the SEC, of all agencies, has a duty, inherent in its statutory mission, to see that truth emerges; and if it fails to do so, this Court must not, in the name of deference or convenience, grant judicial enforcement to the agency's contrivances."

California Punitive Damages: Missouri Supreme Court considering caps on punitive damages

California Punitive Damages: Missouri Supreme Court considering caps on punitive damages:

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NY Top Court Reshapes Auto Accident Law - NY Personal Injury Blog

Eric Turkewitz reports on Perl v. Meher.  Go to his full post for background and significance. The Court of Appeals opinion is HERE. - GWC 

NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”) – New York Personal Injury Law Blog:

"Last month I wrote about three cases being argued in New York’s Court of Appeals that had the potential to reshape the entire face of auto accident litigation and the definition of “serious injury.” That decision has now come down, and it reverses growing trends in the lower appellate courts that had thrown out cases as a matter of law if they didn’t have a doctor to show a “contemporaneous” loss of motion, to come within the “serious injury” threshold for the No-Fault law. The courts were refusing to allow juries to act as fact finders.Unless you are intimately familiar with the subject — and why this is one of the biggest decisions in auto litigation in years — you should read this post first and then return: Court of Appeals Hears Argument On “Serious Injury” in NY Auto Cases (What Should They Do?). In fact, I didn’t just write about this last month, but 13 months ago when I speculated in Perl v. Maher that this issue would come to a head. And two years ago I drew quite similar conclusions to today’s decision.So yes, I’ve been watching this awhile, as has the entire personal injury bar. Because this is very, very big."

A Review of Snigda Prakash’s All the Justice Money Can Buy, a Book on the Vioxx Tort Litigation | Rodger Citron | Verdict | Legal Analysis and Commentary from Justia

Former NPR reporter Snigdha Prakash, former NPR reporter, was embedded with the plaintiff's lawyer Mark Lanier for one of the Vioxx trials. I worked for Lanier on the appeal of another Vioxx case McDarby v. Merck, 949 A. 2d 223 (NJ App. Div. 2008).      I read the complete trial record of that case - the McDarby and Cona trials which were before the same judge.  I find her account rings quite true. And Citron's review presents it fairly. - GWC

A Review of Snigda Prakash’s All the Justice Money Can Buy, a Book on the Vioxx Tort Litigation | Rodger Citron | Verdict | Legal Analysis and Commentary from Justia:

by Prof. Rodger Citron

Snigda Prakash, All the Justice Money Can Buy (Kaplan Publishing 2011)

©iStockphoto.com/HPuschmann

Snigda Prakash, a former National Public Radio reporter, has written an interesting book about the litigation against Merck & Co., the manufacturer of Vioxx, a prescription drug used to relieve pain and inflammation. Merck withdrew its heavily-promoted drug from the market in 2004 due to concerns that consumers of Vioxx faced an increased risk of heart attacks and strokes; a deluge of tort lawsuits followed.

In All the Justice Money Can Buy, Prakash traces the history of the litigation, beginning with efforts by plaintiffs’ lawyers to sue the company even before Vioxx had been withdrawn from the market and concluding with the nearly $5 billion settlement agreement announced in late 2007 that covered the claims of most of the plaintiffs.

Much of Prakash’s book provides a detailed account of a trial in New Jersey in early 2007. One of the plaintiff’s lawyers, Mark Lanier, allowed Prakash to go behind the scenes to see how he prepared and presented his case. Wisely, Prakash accepted the opportunity to observe Lanier, a superb trial attorney from Texas, at work.

As discussed below, Prakash took full advantage of the access provided by Lanier and has provided a vivid and thorough reconstruction of a lengthy civil trial involving complicated issues. All the Justice Money Can Buy will be especially interesting to civil litigators who actually try cases instead of resolving them through settlement or pretrial motions.

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Financial Finger-Pointing Turns to Regulators - NYTimes.com

99%'ers line up outside failed
IndyMac bank whose failure
cost taxpayers billions

The defense claim is made in response to an SEC inquiry that the bank holding company filing statements the SEC alleges to be fraudulent were in fact approved by accountants Ernst & Young, and by the federal Office of Thrift Supervision.  Therefore they could not be fraudulent, according to Section IV A of defendant IndyMac Bancorp CEO Michael W. Perry's defense memorandum, which cites the Supreme Court's requirement [in Merck v. Reynolds (2010)] of an act with "intent to deceive".

Financial Finger-Pointing Turns to Regulators - NYTimes.com:

by Louise Story and Gretchen Morgenson

"In the whodunit of the financial crisis, Wall Street executives have pointed the blame at all kinds of parties — consumers who lied on their mortgage applications, investors who demanded access to risky mortgage bonds, and policy makers who kept interest rates low and failed to predict a housing market collapse.

But a new defense has been mounted by a bank executive: my regulator told me to do it."

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Department of Justice Challenges Utah’s Immigration Law

Welcome to the United States Department of Justice:
"Department of Justice Challenges Utah’s Immigration Law
Several Provisions Interfere with Enforcement of Federal Immigration Law
WASHINGTON – The Department of Justice today challenged Utah’s immigration law, which comes after recent lawsuits in Arizona, Alabama and South Carolina. "
In a complaint, filed in the District of Utah, the department states that several provisions of Utah’s H.B. 497 are preempted by federal law. The provisions were enacted on March, 15, 2011.

The department’s lawsuit comes after several months of constructive discussions with Utah state officials. Notwithstanding today’s lawsuit, department officials expect this important dialogue to continue.

The department’s complaint states that H.B. 497 clearly violates the Constitution because it attempts to establish state-specific immigration policy. The law creates and mandates immigration enforcement measures that interfere with the immigration priorities and practices of the federal government in a way which is not cooperative with the primary federal role in this area. The law’s mandates on law enforcement could lead to harassment and detention of foreign visitors and legal immigrants who are in the process of having their immigration status reviewed in federal proceedings and whom the federal government has permitted to stay in this country while such proceedings are pending.

The federal government has the ultimate authority to enforce federal immigration laws and the Constitution does not permit a patchwork of local immigration policies. A state setting its own immigration policy interferes with the federal government’s enforcement efforts.

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Merck Agrees to Pay $950 Million in Vioxx Case - NYTimes.com

Merck Agrees to Pay $950 Million in Vioxx Case - NYTimes.com: "The Department of Justice said on Tuesday that Merck will plead guilty and pay $950 million to resolve investigations into its marketing of the painkiller Vioxx.

The agency said Merck will pay $321.6 million in criminal fines and $628.4 million as a civil settlement agreement. It will plead guilty to a misdemeanor charge that it marketed Vioxx as a treatment for rheumatoid arthritis before getting Food and Drug Administration approval.

Among other things the Department of Justice charged that false claims about the safety and effectiveness of Vioxx caused Medicare and Medicaid to pay for drugs that they would not have bought but for the misrepresentation.

Merck stopped selling Vioxx in 2004 after evidence showed the drug doubled the risk of heart attack and stroke. In 2007, the company paid $4.85 billion to settle around 50,000 Vioxx-related lawsuits."

Merck's misconduct also led to a 2008 $650 million settlement of charges that Merck failed to pay rebates owed to Medicare and Medicaid, and made illegal payments to providers to induce them to prescribe Zocor Vioxx.  Those were qui tam actions brought by whistleblowers.

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Lincoln, Slavery and the Kansas-Nebraska Act

I mentioned in class today that the common law tradition radically unites property and personal liberty (and has a weak conception of the common good).  To illustrate the power of the liberty point; and that American slavery exposed American claims of liberty as hypocritical here are two passages from Abraham Lincoln in the book I am reading at the moment: The Fiery Trial - Abraham Lincoln and American Slavery by Eric Foner.


 Both come from a long speech in 1854 - denouncing Stephen Douglas and the Kansas Nebraska Act - which permitted settlers to decide whether slavery should be allowed in the Territory. - GWC

“This declared indifference, but as I must think, covert zeal for the spread of slavery I cannot but hate.  I hate it because of the monstrous injustice of slavery itself.  I hate it because it deprives our republican example of its just influence in the world - enables the enemies of free institutions, with plausibility, to taunt us as hypocrites - causes the real friends of freedom to doubt our sincerity, and especially because it forces so many really good men amongst ourselves into an open war with the very fundamental principles of civil liberty - criticising the Declaration of Independence, and insisting that there is no right principle of action but self-interest.”
“The dotrine of self government is right - absolutely and eternally right - but it has no just application...Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man...If the negro is a man, is it not to that extent, a total destruction of self-government to say that he too shall not govern himself?  When the white man governs himself that is self-government; but when he governs himself, and also governs another man...that is despotism.  If the negro is a man, why then my ancient faith teaches me that `all men are created equal’; and that there can be no moral right in one man’s making a slave of another.”  

Elizabeth Warren '76 remembers Rutgers Law years

Elizabeth Warren was two years behind me at Rutgers Law School - which we called People's Electric Law School.  She is interviewed here by Prof. Paul Tractenberg about her years in Newark.  She remembers with particular fondness her contracts teacher and mine - Alan Axelrod.  Married at 19 and a mother of an infant while she was a student, nine months pregnant again at graduation she says Rutgers "taught me pull up your socks and try".
HERE is the video.

High Court Drafts Lawyers to Rescue Orphaned Arguments - Law Blog - WSJ

SCOTUS names lawyers to brief arguments embraced by courts but spurned by litigants in the Affordable Care Act cases. The plot thickens. - GWC

High Court Drafts Lawyers to Rescue Orphaned Arguments - Law Blog - WSJ:

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OTHERWISE: After Law School, Associates Learn to Be Lawyers - NYTimes.com

OTHERWISE: After Law School, Associates Learn to Be Lawyers - NYTimes.com:

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Pepper spraying sit-down protesters

There would be plenty of outrage if the police seen here were in China.  There would be high level statements from the Department of State and lamentations by Presidential candidates.  If it happened in Birmingham Alabama in 1963 there would have been national outrage. But this happened at the University of California - Davis and the reaction so far is minimal.  James Fallows has much more at The Atlantic.
42 USC 1983 was passed by the post-civil war Republican Congress to deal with conduct like this.  Fortunately it is still on the books. - GWC
Video is HERE

Asbestos collusion 'killed thousands' / Britain / Home - Morning Star

Asbestos collusion 'killed thousands' / Britain / Home - Morning Star:

by John Millington

Leading asbestos campaigner John Flanagan launched a stinging attack on ex-ministers, businesses and insurance firms which he accused of playing a part in the deaths of thousands of workers.

He said that big business had lobbied government to block new health and safety rules after World War II.

The insurance industry then covered up the dangers posed by the substance to workers to avoid having to pay out compensation.

Mr Flanagan of Merseyside Asbestos Victim Support Group told the Hazards conference at the Abbey Centre, London: "Big business sent private correspondence to government saying they don't think it would be a good idea to have face masks for ship workers.

"It took until 1963 before they were brought in, but as late as the 1970s, employers were still saying it was safe."

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F.D.A. Revokes Approval of Avastin for Use as Breast Cancer Drug - NYTimes.com

F.D.A. Revokes Approval of Avastin for Use as Breast Cancer Drug - NYTimes.com:
Dr. Hamburg’s decision, outlined in a 69-page memorandum, agrees with the unanimous recommendation made by an F.D.A. advisory committee in June, at the end of a two-day hearing at which some women taking the drug pleaded for its continued approval.
 "An initial clinical trial that was the basis for the provisional approval showed that Avastin, combined with the drug paclitaxel, which is also known by the brand name Taxol, delayed the progression of disease by about five and a half months, compared to use of paclitaxel alone.

But in subsequent studies, in which Avastin was combined with different chemotherapy drugs, tumor growth was delayed by one to three months. Avastin did not prolong lives at all, nor did it improve quality of life.

Many breast cancer specialists say that Avastin does appear to work very well for some patients, and some advocates have said the drug should be left on the market for the sake of those patients. But Dr. Hamburg said there was no way to determine in advance who those patients were, so many women would use the drug. “The evidence does not justify broad exposure to the risks of this drug,” she wrote."

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Alabama Legislators Weighing Changes To State's Draconian Immigration Law | ThinkProgress

Alabama Legislators Weighing Changes To State's Draconian Immigration Law | ThinkProgress:

by Amanda Peterson Beadle

"The realities of how drastically HB 56, Alabama’s extremely harmful immigration law, harms the state economy and daily lives of state residents has become abundantly clear, with farmers watching crops rot because they do not have enough workers, children being bullied in school, and proof of citizenship being required for everything down to getting a library card."

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Big boost for health care : SCOTUSblog

Big boost for health care : SCOTUSblog:

by Lyle Denniston

"For the second time, a federal judge with undoubted credentials as a conservative jurist has concluded that Congress had ample authority to enact the new federal health care law, giving the Obama Administration a new and significant victory just as the Supreme Court is about to take up the constitutional controversy. Senior U.S. Circuit Judge Laurence H. Silberman of the D.C. Circuit Court, who is among the most conservative of all federal judges, expressed some misgivings on Tuesday about the breadth of the key part of the new law, but nevertheless took only 13 pages of brisk argument to declare that provision to be constitutional."

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F.D.A. Is Urged to Issue More Alerts About Drug Risks - NYTimes.com

by Bruce Japsen

"The process of posting potential safety signals began in the first quarter of 2008 as a result of legislation signed into law the previous year by President George W. Bush. The law, known as the Food and Drug Administration Amendments Act, directed the agency to conduct regular screenings of its adverse event reporting database and post quarterly reports online. The legislation was passed in the wake of several high-profile drug scandals, including the increased risks of heart attacks among those taking Vioxx, the painkiller that ultimately was withdrawn from the market.

Dr. Sidney Wolfe. director of health research at the Washington nonprofit group Public Citizen who also sits on a drug safety advisory committee to the F.D.A., said: “For most, if not all, of these drugs, alternative (usually older) drugs with comparable efficacy and more established safety records can be found.”

F.D.A. Is Urged to Issue More Alerts About Drug Risks - NYTimes.com:

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Court sets 5 1/2-hour hearing on health care (FINAL) : SCOTUSblog

Lyle Denniston of Scotus Blog summarizes the Supreme Court's grant of certiorari in the challenges to the Affordable Care Act.

Court sets 5 1/2-hour hearing on health care (FINAL) : SCOTUSblog:

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More Accusations Surface Involving Penn State Coach - NYTimes.com

More Accusations Surface Involving Penn State Coach - NYTimes.com: "In a phone interview with Bob Costas that was broadcast Monday night on the NBC news program “Rock Center,” Sandusky said he was innocent of the charges against him and declared that he was not a pedophile. He did acknowledge, “I shouldn’t have showered with those kids.”

“I could say that I have done some of those things,” he said of the accusations against him. “I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their legs without intent of sexual contact.”"

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Paralyzed Fordham Student Sues School After Drunken Fall: Gothamist

Paralyzed Fordham Student Sues School After Drunken Fall: Gothamist:

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Christie slams N.J. Supreme Court for fast-tracking challenge to judges' health-benefits law | NJ.com

The New Jersey Supreme Court agreed to hear directly (without waiting for the Appellate Division to rule) the State's appeal from the order of Superior Court Judge Linda Feinberg. She held that the state's constitution bars recent legislation which increases Judges' contributions to pension and health & welfare funds.

Christie slams N.J. Supreme Court for fast-tracking challenge to judges' health-benefits law | NJ.com:

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Jack Raykovitz, Chief of Second Mile, Resigns Amid Penn State Scandal - NYTimes.com

Jack Raykovitz, Chief of Second Mile, Resigns Amid Penn State Scandal - NYTimes.com: "STATE COLLEGE, Pa. — Jack Raykovitz, the chief executive of the Second Mile foundation for 28 years, has resigned amid a sexual abuse scandal involving the charity’s founder, the former Penn State assistant football coach Jerry Sandusky."

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Is Penn State Liable for the Harm Done to Child Sex Abuse Victims?

Penn State - Nittany Lion shrine

Penn State's acting President Rodney Erickson has declared his regret to the eight or more victims of the alleged child sex abuse and the leadership's determination to restore the University's honor in the wake of the unfolding sex abuse scandal at its legendary football program. But it will be a long time before 108,000 fans at the stadium can again repeat with full-throated confidence the trademark call and response - WE ARE...PENN STATE".

 The tragedy at Penn State has garnered great attention - particularly the university's apparent failure to act effectively to protect young children from Jerry Sandusky - a retired coach alleged to have sexually abused eight boys, some of which acts occurred at the University's football training facility.    As I commented the day the Grand Jury's presentment was released it moved me personally because Joe Paterno has been an icon for me and other graduates of my (late, great) Jesuit high school Brooklyn Prep of whose alumni Paterno was among the most illustrious.

 Maxwell Kennerly of the Beasley law firm has prepared a good preliminary discussion of the tort liability issues: Can Sandusky's Childhood Sexual Abuse Victims Sue Penn State? Molestation Lawsuit Information

 NPR has prepared a Guide to principals and timeline


 Those whose acts are most likely to give rise to liability are McQueary and others on the coaching staff, the Athletic Department Director, and the university Vice President for Business. The latter two have been indicted for failure to report the alleged sexual assault to the campus or the state police and for perjury before the grand jury.


Among the issues are those of the credibility of an accuser - Michael McQueary (did he detail to university officials - including Paterno and V.P. Schultz that he actually saw the rape of a 10 year old boy by Sandusky or was his report ambiguous? Did McQueary meet his legal obligation but not his moral obligation, as Gov. Tom Corbett asserted on Meet the press today? That question is equally apt for head coach Joe Paterno.

A major obstacle to university liability may be sovereign immunity. Is the Pennsylvania State University a state agency? The Commonwealth Court has held in Doughty v. City of Philadelphia and Temple University that Temple - a Commonwealth University - is not a state agency. Penn State - a land-grant university - may have the benefit of sovereign immunity as do the colleges in the Pennsylvania State System of Higher Education. In McNichols v. Dept. of Transportation (2002) the immunity doctrine was affirmed by the Commonwealth Court.
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Fuel Fix » Lawmaker calls on BP to pay oilfield supply workers hurt by drilling ban

Fuel Fix » Lawmaker calls on BP to pay oilfield supply workers hurt by drilling ban: "BP should compensate thousands of oilfield service companies and workers who lost business and wages after last year’s oil spill and a resulting moratorium on deep-water exploration, a Louisiana lawmaker said.

Rep. Jeff Landry, R-La., called on the British oil giant to compensate the workers and businesses, who currently are in a kind of legal limbo — ineligible both for payments under the Gulf Coast Claims Facility administered by Kenneth Feinberg and from a now-shuttered $100 million fund BP established for oil rig workers hurt by the spill."

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Obama's Health Care Law Is Upheld by D.C. Appeals Court | Main Justice

Obama's Health Care Law Is Upheld by D.C. Appeals Court | Main Justice:

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Medical malpractice reform efforts stalled - Brett Norman - POLITICO.com

Medical malpractice reform efforts stalled - Brett Norman - POLITICO.com: "By BRETT NORMAN | 11/7/11 10:29 PM EST

In a bid to win support for health reform from skeptical doctors back in 2009, President Barack Obama pledged action on an item near the top of their wish list — malpractice reform.

And he delivered an initial step: $25 million to test alternatives to the medical liability system. That won praise from the American Medical Association, among others. But since then, tort reform on the federal level has been put on ice, a victim of both tight money and bitter politics."

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Judge Blocks Graphic Cigarette Warnings - NYTimes.com

Judge Blocks Graphic Cigarette Warnings - NYTimes.com: "WASHINGTON (Reuters) - A federal judge blocked a rule requiring tobacco companies to display graphic images on cigarette packs, such as a man exhaling cigarette smoke through a hole in his throat.
District Judge Richard Leon sided on Monday with tobacco companies and granted a temporary injunction, saying they would likely prevail in their lawsuit challenging the requirement as unconstitutional because it compels speech in violation of the First Amendment."  
Leon wrote:  "It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking – an objective wholly apart from disseminating purely factual and uncontroversial information."
The opinion and order staying enforcement of the Rule in R.J. Reynolds v. U.S. FDA is HERE.  


Floyd Abrams and Prof. Steve Shiffrin debate the issue on NPR HERE
h/t Drug and Device Law Blog

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Hip implant litigation grows

Richard Meadow of the
Lanier Law Firm

Ellen Relkin of
Weitz Luxenberg

Metal on metal - a grinding problem - has led to many complaints among those who have had the devices implanted.  Plaintiffs lawyers like Ellen Relkin and Richard Meadow (with whom I worked on the Vioxx litigation) are taking on a big fight against the medical device manufacturers who have implanted hundreds of thousands such devices in the hips of patients suffering from falls, or arthritis.  According to an October 31 report in the National Law Journal the litigation is just getting rolling. - GWC

On May 6, the U.S. Food & Drug Administration, which regulates ­medical devices, ordered 21 manufacturers of metal-on-metal hip implants to conduct surveillance on their products and to assess the safety of the devices. DePuy, based in Warsaw, Ind., initiated a voluntary recall of all its ASR devices after fresh data in the United Kingdom indicated that the rate of patients who had to return to surgery within five years — the revision rate — was 12 to 13 percent. That was much higher than the industry standard, according to the FDA. DePuy recalled two devices: The ASR XL acetabular hip system, introduced to the U.S. market in 2005, and the ASR hip-resurfacing system, which was not sold in the United States.
More than 2,200 cases involving the devices are pending in a federal multidistrict proceeding in Toledo, Ohio. Another 1,000 are pending in state courts in California and 160 in New Jersey's state courts.