Thursday, August 29, 2013

N.F.L. Agrees to Settle Concussion Suit for $765 Million -

Minimal value settlement by the NFL and plaintiffs.  Which is not to say it is unfair.  The problems of fault, proof of causation, and the underlying legal theory of liability all presented formidable obstacles for plaintiffs.  The definition of the class and the extent of its remedies and preclusive effect will be worth further study as thegame itslef operates under increasingly close and critical scrutiny. - GWC
N.F.L. Agrees to Settle Concussion Suit for $765 Million - Ken Belson
 "The N.F.L. agreed to pay $765 million to settle a lawsuit brought by more than 4,000 retirees with advanced dementia and other problems as well as the families of players who have died from what they claimed were the long-terms effects of head trauma."

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J&J's DePuy Unit Considers Record-Setting Hip Settlement

JJ considers hip settlementJ&J's DePuy Unit Considers Record-Setting Hip Settlement: "In March, Johnson & Johnson lost its first DePuy Articular Surface Replacement (ASR) trial to the tune of $8.3 million. Not surprisingly, the device manufacturer continued to deny liability for defective ASR hip implants following the verdict and announced plans to appeal. But now the company is rumored to be contemplating a potentially record-breaking settlement of pending hip implant cases.

According to Bloomberg, sources familiar with the DePuy litigation say that the company is considering a $3 billion global settlement. The rumored settlement would resolve up to 11,500 U.S. lawsuits, involving the controversial ASR hip replacement"

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Wednesday, August 28, 2013

Concussion Case Nears Key Phase for N.F.L. -

Concussion Case Nears Key Phase for N.F.L. - by Ken Belson

"Before the N.F.L. regular season begins next Thursday, the league will get a clearer picture of what may be its biggest worry: the lawsuit brought by more than 4,500 retired players alleging that the N.F.L. intentionally misled them about the dangers of head injuries.

The N.F.L. has denied accusations that it deliberately misled players about head injuries, saying that it relied on the best science available at the time to create policies on concussions. The N.F.L. has also argued that any disputes should be governed not by the courts but by the collective bargaining agreements signed by the league and its players union.

If the judge lets any of the claims proceed, the plaintiffs still must prove that their medical problems were at least partly the result of head hits sustained in the N.F.L. That is a high hurdle given that almost all of them played football at the youth, high school and college levels, where they could have also sustained concussions.

The players involved in the suit vary widely in age and professional experience. Some played on practice squads and never participated in a game. Many were linemen, linebackers or running backs; others were punters or kickers."

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OTHERWISE: Merrill Lynch in Big Payout for Bias Case -

OTHERWISE: Merrill Lynch in Big Payout for Bias Case - "Merrill Lynch, one of the biggest brokerage firms on Wall Street, has agreed to pay $160 million to settle a racial bias lawsuit that wound through the federal courts for eight years, including two appeals to the United States Supreme Court."

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BP Misconduct Claims on Payments Unfounded, Official Says

BP Misconduct Claims on Payments Unfounded, Official Says:
BP Plc’s allegations of misconduct in the program set up to pay claims in the settlement over the 2010 Gulf of Mexico oil spill are unfounded, the administrator of the program said.Patrick Juneau, the administrator, Monday asked U.S. District Judge Carl Barbier, who is overseeing the litigation connected to the spill, to reject the company’s bid to temporarily halt payments.BP “has failed to submit evidence that would even arguably justify the granting of such an overbroad request,” Juneau’s lawyers said in a filing in federal court in New Orleans. BP’s “global aspersions” on the claims office’s “internal controls and fraud detection systems and processes are uninformed and baseless,” they said.Barbier last month rejected the company’s request to stop the payments while Louis Freeh, former director of the Federal Bureau of Investigation, probes allegations of misconduct in the claims program.BP renewed the request Aug. 5, citing “new evidence of more widespread and potentially systemic improprieties” in the claims program. BP said this evidence was uncovered through a fraud hotline the company set up.
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Monday, August 26, 2013

Internal Probe: No Fraud at BP Claims Center in AL - ABC News

Internal Probe: No Fraud at BP Claims Center in AL - ABC News:
The head of security for the administrator of BP's multibillion-dollar settlement with Gulf Coast residents and businesses says an internal probe of alleged misconduct by an employee of a Mobile, Ala., claims center hasn't turned up any evidence of fraud.BP said it received a tip in July that someone who worked at the Mobile office helped people submit fraudulent claims in exchange for some of the settlement money.But David Welker, a former FBI supervisor who now works for court-supervised claims administrator Patrick Juneau, said in a letter dated Aug. 22 that his investigation found no evidence of fraud in any of the claims handled by the employee.BP cited the employee's alleged misconduct in its Aug. 5 request for a federal judge to temporarily suspend all settlement payments. U.S. District Judge Carl Barbier rejected a similar request by BP in July, but he hasn't ruled yet on the company's renewed bid to suspend payments.In a court filing Sunday, two of the plaintiffs' attorneys who brokered the settlement with BP said the company hasn't presented any evidence that any claim was improperly calculated or paid."There is not even an argument, much less an evidentiary showing, to support the injunction of the entire Settlement Program," wrote the lawyers, Stephen Herman and James Roy.In his letter to a BP official, Welker said the Mobile employee accused of misconduct has helped 124 people. All of those claims were placed on hold.The employee's mother filed a claim, but she denied any wrongdoing and withdrew it, Welker said.

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Patton Boggs' New Jersey Chief Departs Amid Firm's Upheaval

Patton Boggs New Jersey managing partner has left the firm and joined the Princeton office of Morgan Lewis.  The D.C.-based firm's Jersey office has been reduced this year from 80 to 46 lawyers. - GWC
Patton Boggs' New Jersey Chief Departs Amid Firm's Upheaval: "What’s more, the firm is in the midst of an upheaval. It laid off 65 lawyers and staff in March, when managing partner Edward Newberry told The Wall Street Journal that 18 partners were notified their contracts would not be renewed unless their performance improved.

According to an Aug. 8 article in The Wall Street Journal, more than 20 partners defected during the summer.

The New Jersey office was hard-hit by the wrap-up of litigation over health problems suffered by workers responding to the World Trade Center terrorist attacks of Sept. 11, 2001, according to a source familiar with the firm. The litigation — a mainstay of the office, which represented New York City and some of its contractors — ended in 2011 with a $625 million settlement"

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Friday, August 23, 2013

Remembering a Legend: Ron Motley - Plaintiffs Lawyer

Ron Motley, right, with tobacco whistleblower Jeffrey Wigand
Ron Motley has died at 68.  An extravagant personality, married five times, owner of a 156 foot yacht, who tackled the most successful of tort-feasors - the tobacco companies and won, as the Times obit reports.  He was a leading member of a cohort of plaintiffs lawyers who vindicated the rights of workers who suffered asbestos related disease.  In the course of the effort they transformed the substantive law, as Anita Bernstein details in her article Asbestos Achievements.   The asbestos plaintiffs lawyers transformed the substantive law, making possible - via advances in legal doctrine and financial wherewithal - the later successful mass tort litigation against the pharmaceutical giants, such as Merck in the Vioxx litigation.  After the landmark 1974 opinion by (old) 5th Circuit Judge John Minor Wisdom in Borel v. Fibreboard plaintiffs' lawyers took the evidence amassed by Dr. Irving Selikoff and others, and determinedly confronted the difficult issues in asbestos cases: identification of the defendant suppliers, the problem of multiple suppliers, apportionment of liability, proving causation of disease, the impact of smoking,the problem of latency - delayed development of disease many years after inhalation when witnesses and records (if any) were unavailable.

As a People's Electric alum I was a minor member of that fraternity.  We were united by the spirit of doing justice to those who had been injured by the greed of industry.  The asbestos litigation was at bottom a workers rights movement.  For a handful of those lawyers of great force and  entrepreneurial skill and determination that led to wealth.  Motley was prominent among them, building a large practice from the suffering of South Carolina textile mill workers who were injured by the ubiquitous mineral used for fireproof curtains and insulation. - gwc

Remembering a Legend: Statement from Motley Rice Co-Founder Joe Rice | Motley Rice Law Firm: "Mt. Pleasant, SC – (Aug. 22, 2013) – It is with the deepest sadness and most profound grief that I share with you that Motley Rice LLC co-founder Ronald L. Motley, 68, passed away today, August 22, 2013.

Ron was a true giant of the legal profession. A trail blazer and innovator. A charismatic master of the courtroom. A tenacious interrogator. The greatest trial lawyer ever. All marked by unmatched courage in going after any wrongdoer, no matter how big and powerful, and by his bottomless well of compassion for those who had been wronged.

Ron and I were partners and close friends for 35 years as we worked together to fight for our clients and their causes to build Motley Rice into what it is today. Not only is this a personal loss to me, Ron’s family, my family and our firm but also for so many more for whom Ron also was a devoted friend, mentor, collaborator, legal adversary and fellow crusader for justice."

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N.F.L. Pressure Said to Lead ESPN to Quit Film Project -

N.F.L. Pressure Said to Lead ESPN to Quit Film Project -
by James Andrew Miller
 "Pressure from the National Football League led to ESPN’s decision on Thursday to pull out of an investigative project with “Frontline” regarding head injuries in the N.F.L., according to two people with direct knowledge of the situation.
ESPN, which is owned by the Walt Disney Company, pays the N.F.L. more than $1 billion a year to broadcast “Monday Night Football,” a ratings juggernaut and cherished source of revenue for Disney."
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ESPN Quits Film Project on Concussions in N.F.L. -

ESPN Quits Film Project on Concussions in N.F.L. -
by Richard Sandomir
"ESPN on Thursday ended its official association with “Frontline,” the public television public affairs series, on a two-part documentary about concussions in the N.F.L. that is scheduled to be televised in October. After 15 months on the venture, ESPN chose to strip its name, logo and credit from the films, “League of Denial: The NFL’s Concussion Crisis.”...
ESPN belatedly focused on the fact that it did not have editorial control of what appeared on “Frontline” long into a collaboration that has already resulted in nine joint television and online reports that have appeared on ESPN’s “Outside the Lines” program, on and on the “Frontline” Web site. Together they also created Concussion Watch, a database that tracks concussions and other head injuries in the N.F.L."

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Wednesday, August 21, 2013

J&J Said to Weigh $3 Billion Settlement of Its Hip Implant Cases - Bloomberg

J&J Said to Weigh $3 Billion Settlement of Its Hip Implant Cases - Bloomberg:

Johnson & Johnson (JNJ), the world’s biggest seller of health-care products, has discussed paying more than $3 billion to settle lawsuits over its recalled hip implants, according to five people familiar with the matter.

J&J seeks to resolve as many as 11,500 lawsuits in the U.S. and has considered paying more than $300,000 per case, according to the people. Such a settlement would exceed $3 billion if most plaintiffs accept the terms, an amount 50 percent larger than that proposed in previous discussions.

Enlarge image
Michael Kelly, attorney for plaintiff Loren Kransky, holds up an ASR XL hip implant made by Johnson & Johnson during his opening statement to the jury at the trial of Kransky v. DePuy, at the California Superior Court in Los Angeles, on Jan. 25, 2013. Photographer: Patrick T. Fallon/Bloomberg

A $3 billion settlement would dwarf a 2001 accord Sulzer (SUN) AG reached with patients who claimed that company’s hip and knee implants were defective. Sulzer, a Winterthur, Switzerland-based pump maker, agreed to pay $1 billion to resolve those suits, then the largest settlement involving hip implants.
Any accord would be affected by the outcome of seven product-liability trials between September and January, according to the people, who aren’t authorized to make the negotiations public.
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Students’ use of laptops in class lowers grades: Canadian study - The Globe and Mail

Students’ use of laptops in class lowers grades: Canadian study - The Globe and Mail:
by Michael Oliveira
Laptops have replaced pen and paper for many post-secondary students but a Canadian study suggests using computers during lectures could be hurting their grades and lowering their classmates’ marks.
For the study, published earlier this year in the journal Computers & Education, research subjects in two experiments were asked to attend a university-level lecture and then complete a multiple-choice quiz based on what they learned.
In the first experiment, which was designed to gauge how multitasking affects learning, all the participants used laptops to take notes during a lecture on meteorology. But half were also asked to complete a series of unrelated tasks on their computers when they felt they could spare some time. Those tasks — which included online searches for information — were meant to mimic what distracted students might do during class.
In the second experiment, some students were given pencils and paper to take notes during a lecture while others worked on laptops. Researchers wanted to observe if the students taking notes the old-fashioned way would be distracted by having computer screens around them.
Faria Sana, who co-authored the study with fellow doctoral student Tina Weston, said she expected lower test marks for students who were asked to multitask during the experiment, or were seated near other students using laptops. But the distraction effect was stronger than she hypothesized.
“We really tried to make it pretty close to what actually happens in the lectures, we found that lo and behold, the students who multitasked performed much worse on the final test and those who were seated around peers who were multitasking also performed much worse on the final test,” said Sana.
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Saturday, August 10, 2013

OTHERWISE: S.E.C. Is Said to Press JPMorgan for an Admission of Wrongdoing -

OTHERWISE: S.E.C. Is Said to Press JPMorgan for an Admission of Wrongdoing -

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OTHERWISE: Fordham Law Mourns Passing of Hon. Joseph M. McLaughlin ’59 - Fordham Law

OTHERWISE: Fordham Law Mourns Passing of Hon. Joseph M. McLaughlin ’59 - Fordham Law:
Judge McLaughlin was the Dean of Fordham Law School for ten years. And a graduate of the Brooklyn Preparatory School.  Like me he treasured his years there. - gwc
McLAUGHLIN, Circuit Judge:   "In the late 1980's a wide prosecutorial net was cast upon Wall Street. Along with the usual flotsam and jetsam, the government's catch included some of Wall Street's biggest, brightest, and now infamous — Ivan Boesky, Dennis Levine, Michael Milken, Robert Freeman, Martin Siegel, Boyd L. Jeffries, and Paul A. Bilzerian — each of whom either pleaded guilty to or was convicted of crimes involving illicit trading scandals. Also caught in the government's net was defendant-appellant John A. Mulheren, Jr., the chief trader at and general partner of Jamie Securities Co. ("Jamie"), a registered broker-dealer...."
The opening lines of his opinion reversing the conviction of Mulheren as unsupported by evidence.  U.S. v. Mulheren, 938 F. 2d 363 (1991)

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Thursday, August 8, 2013

The case for DES in STEMI patients |

The case for DES in STEMI patients |
New York, NY - Newer-generation drug-eluting stents, particularly the everolimus-eluting stent (Xience V, Abbot; Promus, Boston Scientific), significantly reduce the risk of target vessel revascularization (TVR) in patients with ST-segment-elevation MI (STEMI) without increasing the risk of adverse safety outcomes, including rates of stent thrombosis, when compared with bare-metal stents [1].These are the principal findings of a new meta-analysis of 28 randomized, controlled clinical trials involving more than 34 000 patient-years of follow-up.Published online August 6, 2013 in Circulation: Cardiovascular Interventions, the analysis showed that compared with the sirolimus-eluting stent (Cypher, Cordis), the paclitaxel-eluting stent (Taxus, Boston Scientific), and bare-metal stents, the use of an everolimus-eluting stent reduced the relative risk of stent thrombosis 62%, 61%, and 58%, 

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Wednesday, August 7, 2013

Generic drug mfrs should have same safety warning duty as brand name patentees - New England Journal of Medicine

On Access and Accountability - Two Supreme Court Rulings on Generic Drugs
by Marcia Boumil, J.D., LL, and Gregory Curfman, MD
New England Journal of Medicine, August 7, 2013

Generic drug manufacturers are not free to add safety warnings without FDA permission, the United States Supreme Court held in Mutual Pharmaceutical v. Bartlett. In a 5-4 decision over Sonia Sotomayor's vigorous dissent the Court dismissed the judgment in favor of a woman blinded by a drug which now carries a warning about the danger.

Tufts medical school professor Marcia Boumil and Dr. Gregory Curfman, executive editor of the New England Journal of Medicine criticize the Bartlett ruling but report that the FDA has announced a proposed rule that would "create parity" between brand-name drug patent holders and generic manufacturers.  That is the FDA plans to change its regulations to impose on generics the same duty to upgrade warnings as do new drug manufacturers still protected by patent. They write:
The Bartlett ruling, however, leaves generics  companies unaccountable to consumers — but it has apparently  prompted the FDA to consider  revising its own labeling rule.  Days after the Court’s decision,  the agency released a proposed  revision that would “create parity” in the ability of brand-name  and generic drug companies to  control their labels’ contents. If  the proposed rule is adopted, it  may increase the cost of generic  drugs, since companies will be  accountable for their labels’  contents and so will have to invest more heavily in their own  safety studies. If the Bartlett ruling stands, the cost of generic  drugs may be reduced, since  companies won’t be liable for  most of the harm caused by  their products. Since nearly four  of five prescriptions are now  filled with generic drugs, the  impact of these decisions on this  already large and growing industry can be expected to be substantial.

BP seeks to stop payouts to claims administrator | The Trinidad Guardian Newspaper

BP seeks to stop payouts to claims administrator | The Trinidad Guardian Newspaper:
NEW ORLEANS—BP is balking at paying more than US$130 million in fees for the court-supervised administrator of its multibillion dollar settlement with Gulf Coast businesses and residents after the 2010 Gulf oil spill. A federal magistrate has scheduled a hearing today for BP to show why it shouldn’t be ordered to fund claims administrator Patrick Juneau’s proposed third-quarter budget.
In a letter Monday, a BP claims official said the company cannot determine if Juneau’s budget request is reasonable without more documentation. The official also claimed the settlement programme has been plagued by poor productivity and excessive costs. Separately, BP has asked a judge to suspend all settlement payments while former FBI Director Louis Freeh investigates alleged fraud in the programme.
BP Plc said Monday it has discovered new evidence of fraud and conflicts of interest in the programme that is paying billions of dollars to businesses and residents who claimed they were harmed by the 2010 Gulf of Mexico oil spill. The oil company made the disclosure in a filing with the US District Court in New Orleans as part of a renewed effort to suspend the payouts until Freeh, the court-appointed monitor, finishes investigating the payout programme.
BP said it learned within the last week that two lawyers reviewing appeals of disputed claims were partners at law firms representing claimants before the Court Supervised Settlement Programme (CSSP), and thus had apparent conflicts of interest. It also said it learned through its fraud hotline of allegations that a worker at a Mobile, Alabama spill claims centre helped people submit fraudulent claims in exchange for a share of the settlement amounts. BP said the CSSP suspended two employees in connection with this matter.
“BP should not have to face the substantial risk of irreparable harm from improper payments,” the company said. Temporarily halting payments until Freeh finishes his report is “modest relief” that will at most “slightly delay” payouts, which have been running at US$93 million a week, it added. Juneau, the Louisiana lawyer who administers the payout programme, previously announced an internal probe of allegations that a former worker in the payout programme referred claimants to lawyers in exchange for a share of payments

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Tuesday, August 6, 2013

HarrisMartin - Article - N.J. Court Wants Proposed Jury Instructions, Questionnaire 2 Weeks Before Oct. 21 DePuy Hip Trial

HarrisMartin - Article - N.J. Court Wants Proposed Jury Instructions, Questionnaire 2 Weeks Before Oct. 21 DePuy Hip Trial:

N.J. Court Wants Proposed Jury Instructions, Questionnaire 2 Weeks Before Oct. 21 DePuy Hip Trial

HACKENSACK, N.J. — New Jersey Superior Court Judge Brian R. Marinotti has ordered counsel for parties in the state’s first scheduled DePuy ASR hip implant trial to submit proposed jury questionnaires, verdict forms and jury instructions by Oct. 7.
That was one of several deadlines included in a July 26 pre-trial order in a case scheduled for trial beginning Oct. 21 in the Bergen County Superior Court, where the New Jersey ASR Hip cases are coordinated before Judge Martinotti.

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State Oceanic Administration sued over oil production in spill-hit Bohai Bay | South China Morning Post

China’s State Oceanic Administration (SOA) is being sued for allowing US oil major ConocoPhillips to resume production after spills off northern China in 2011, state media reported on Monday.
The Global Times newspaper, affiliated with the ruling Communist Party, said the SOA confirmed it was being pursued for administrative misconduct.
The action is being mounted by the All-China Environment Federation, which describes itself on its website as a non-profit civil society organisation supported by the government.
It is rare for a Chinese official agency to face court action from another government-backed entity.
The spills in June 2011 at the offshore Penglai field, jointly developed by ConocoPhillips and state-owned China National Offshore Oil Corporation, allowed more than 3,000 barrels of oil and oil-based mud – used as a lubricant in drilling – to vent into Bohai Bay.

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Sunday, August 4, 2013

Warnings on helmets? Adequate? Effective?

by Ken Belson
Even by the alarmist standards of many product warnings, the labels on the backs of the football helmets are bracingly blunt: “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death. To avoid these risks, do not engage in the sport of football....”

Friday, August 2, 2013

SAC Capital Advisors - a criminal enterprise?

When tort remedies are inadequate the case for criminal prosecution grows stronger. Such appears to be the case for SAC Capital Advisors - the hedge fund owned by founder Steven A. Cohen. The Securities and Exchange Commission took the unusual step of obtaining an indictment of the company itself, while filing an administrative complaint under the Investment Advisers Act charging Cohen as manager with civil liability for overseeing the enterprise and failing to stop specified insider trades.

The wire fraud act 18 USC 1343 was called "our stradivarius" by Jed Rakoff, reflecting on his years as a federal prosecutor. It reaches "[w]hoever, having devised or intending to devise any scheme or artifice to defraud..." obtains money by false pretenses, etc. A corporation is a "whoever". Innocent investors and stockholders may suffer greatly from an ill conceived prosecution under such a broad criminal statute.

The indictment describes an enterprise with a corrupt culture, led by a principal shareholder who sought and obtained portfolio managers and research analysts with "an edge" over competitors, instructed to find "high conviction" investment opportunities.

A jury will have to decide whether these structures and incidents so characterize the enterprise - SAC Capital Advisors, etc. that the entity is guilty beyond reasonable doubt. The fact that a criminal enterprise is a large one is an aggravating not a mitigating factor. In this case, reportedly, little remains of stockholders beyond Steven A. Cohen himself. If the allegations are true those defrauded by SAC are legion.

Thursday, August 1, 2013

Former Goldman Trader Is Found Liable in Mortgage Deal -

Fabrice Fabre - who lamentably described himself as the Fabulous Fab in a now notorious email - has been found liable by a jury in an enforcement action by the S.E.C.  The case arises from the famed %500 million deal in which John Paulson bet against derivative securities while ACA management bet they bonds would perform.  Tourre was the Goldman Sachs broker who knew but did not disclose that Paulson was taking the short side, misleading investors with cagey formulations, while marveling at his own cleverness. Background information including the complaint can be found on this blog HERE (I have not however updated that page for since 2012) - GWC
Former Goldman Trader Is Found Liable in Mortgage Deal -
In finding Mr. Tourre liable for civil fraud, the jury concluded that he made a material — or important — misstatement to investors and failed to correct it. The S.E.C. had to prove its case by a preponderance of the evidence, a lower standard than criminal cases.
In deliberating the S.E.C.’s most serious claims, the jury was instructed to weigh whether Mr. Tourre intended to defraud investors, or at least acted recklessly. The lesser charges required only that Mr. Tourre acted negligently.
In 2010, the S.E.C. had also charged Goldman with fraud. Not long after the case was announced, the bank settled for $550 million, a record fine at the time.

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OTHERWISE: Legal Ethics Forum: Sixth Circuit: it was unreasonable for Cooley applicants to believe Cooley's "objectively untrue" statements

OTHERWISE: Legal Ethics Forum: Sixth Circuit: it was unreasonable for Cooley applicants to believe Cooley's "objectively untrue" statements:

Caveat emptor for law students?

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Approaching Georges Harbor, Muscongus Bay, Maine
VIDEO by Milton Mejia