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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Friday, June 27, 2014

Politicians’ Prescriptions for Marijuana Defy Doctors and Data -

For one hundred years the FDA has sought to protect the country's food and drug supply from charlatans.  In 1962 the law was amended to require evidence of safety and effectiveness for new drugs.  Since about the same time courts have proclaimed that there is strict liability for mislabeled products.  Is it a good idea for legislatures to proclaim that marijuana cures what ails you when the law has actually forbidden systematic study to determine whether it does or not?  - gwc

Politicians’ Prescriptions for Marijuana Defy Doctors and Data -

by Catherine St,. Louis

New York moved last week to join 22 states in legalizing medical marijuana for patients with a diverse array of debilitating ailments, encompassing epilepsy and cancer, Crohn’s disease and Parkinson’s. Yet there is no rigorous scientific evidence that marijuana effectively treats the symptoms of many of the illnesses for which states have authorized its use.
Instead, experts say, lawmakers and the authors of public referendums have acted largely on the basis of animal studies and heart-wrenching anecdotes. The results have sometimes confounded doctors and researchers.
The lists of conditions qualifying patients for marijuana treatment vary considerably from state to state. Like most others, New York’s includes cancer, H.I.V./AIDS and multiple sclerosis. Studies have shown that marijuana can relieve nausea, improve appetite and ease painful spasms in those patients.
But New York’s list also includes Parkinson’s disease, Lou Gehrig’s disease and epilepsy, conditions for which there are no high-quality trials indicating marijuana is useful. In Illinois, more than three dozen conditions qualify for treatment with marijuana, including Alzheimer’s disease, lupus, Sjogren’s syndrome, Tourette’s syndrome, Arnold-Chiari malformation and nail-patella syndrome.

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Thursday, June 26, 2014

Supreme Court Strikes Abortion Clinic Buffer Zone Law in Massachusetts

Today the Supreme Court struck down as not sufficiently narrowly tailored a Massachusetts law that created a thirty five foot zone around abortion clinic entrances.  The judgement in McCullen v. Coakley was unanimous.  But Justice Antonin Scalia dissented from the majority opinion in which C.J. John Roberts joined with the liberals.  In typically sharp rhetoric Scalia objects to that part of the majority opinion that says the statute is not content-based, i.e. NOT aimed at anti-abortion protesters:
Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U. S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U. S. 753 (1994).
I agree with Scalia that the measure is content-based.  But I would embrace a "separate" First Amendment jurisprudence for anti-abortion protests.  Because I don't think that people have a right to intrude on the privacy of people seeking medical attention, delivering pleas to not have an abortion, etc.  Of course a woman going to such a clinic may be seeking advise, birth control pills, post-op check up, a medically necessary abortion, or an elective one. In my view it is none of the bloody business of anyone else.  I would have voted to uphold the statute. - GWC

Supreme Court Strikes Down Law on Abortion Clinic Buffer Zones -
by Adam Liptak

WASHINGTON — The Supreme Court on Thursday struck down a Massachusetts law that barred protests near abortion clinics.
The law, enacted in 2007, created 35-foot buffer zones around entrances to abortion clinics. State officials said the law was a response to a history of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two facilities in 1994.
The law was challenged on First Amendment grounds by opponents of abortion who said they sought to have quiet conversations with women entering clinics to tell them about alternatives to abortion.
In 2000, the Supreme Court upheld a similar Colorado law in Hill v. Colorado. That law established 100-foot buffer zones outside all health care facilities, not just abortion clinics. Inside those larger zones, the law banned approaching others within eight feet for protest, education or counseling without their consent.
Massachusetts experimented with a similar law but found it inadequate.

Wednesday, June 25, 2014

Up to 100 children a year die from accidental shootings, research shows | World news |

Up to 100 children a year die from accidental shootings, research shows | World news |

by Ed Pilkington

"The tragedy of children killed accidentally by guns in the US is laid bare in new research that shows that as many as 100 boys and girls aged 14 and under are dying each year, substantially more than federal statistics have previously suggested.

Everytown and Moms Demand Action for Gun Sense in America – affiliated groups that campaign for stronger gun laws – have studied the incidents of publicly reported unintentional gun deaths involving children in the period of a year from 15 December 2012 to 14 December 2013.

The report exposes a long list of lives cut short as a result of largely preventable calamities.

Like the one that befell two-year-old Sincere Smith in Conway, South Carolina, who was relaxing after a heavy meal of chicken and mac and cheese on Christmas day when he spotted an object on the living room table. It was a .38-caliber handgun that his father had bought two weeks before and had left on the table while he went to make a phone call. Sincere picked it up and fired a single shot through his own chest; he died en route to hospital."

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Son of Halliburton : SCOTUSblog

Opinion analysis: Son of Halliburton : SCOTUSblog:

 "The eagerly awaited decision in Halliburton Co. v. Erica P. John Fund – before the Court for the second time – was finally handed down by the Supreme Court.  As usual, there is a little something for everyone.  What is unusual is that there were no dissents.  Rather, the Justices divided into three camps of three. 

 The question before the Court this time around was whether a defendant can defeat class action status by showing that market price was unaffected by an alleged misrepresentation.  The question arises because under the fraud-on-the-market (FOTM) theory, adopted by the Court in Basic, Inc. v. Levinson, investors can be presumed to rely on a public material misrepresentation about a stock that is traded in an efficient market because it is presumed to affect market price and because investors are presumed to rely on the integrity of the market.

 In a word, the answer to this question is YES – defendants may seek to rebut the presumption for purposes of defeating certification."

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Friday, June 20, 2014

China's Courts - how/do they work?

People often picture China as a lawless place or one run by the fiat of party leaders.  The situation of course is far from that.  the Supreme People's Court has new directed that all courts post their decisions online.  The SPC site is HERE (in Chinese of course).  And although there is not a system of precedent the SPC has begun to designate "guiding cases", now available HERE in translation from Stanford Law School.  IP litigation of course is a big concern of stakeholders. The Supreme Peoples court hosts a database of IP cases.   CIELA provides analytics.  It describes itself as:

Thursday, June 19, 2014

Richard Posner & NAACP v. Button — A Short History - Concurring Opinions

We see our task as lawyers as working out the logic of the law and applying it to the facts.  But the law embraces competing values, so one must choose which to elevate and which to subordinate.  For many years stirring up litigation was deemed an evil.  Virginia passed five laws which took aim at such practices.  but their real target was the NAACP which was the leading force in the courts supporting Brown v. Board of Education.  So in Richmond, former capital of the Confederate States of America, lawyers devised a facially neutral policy that would put the NAACP out of business in the name of regulating the practice of law: plainly a state function.

Bt contingencies determine fate. The original vote was 5-4 in favor of Virginia but the resignation of Justice Whittaker and the severe stroke suffered by Felix Frankfurter changed the composition of the Court - and the result.  Ronald Collins digs into the back story. - gwc

h/t John Steele, Legal Ethics Forum 

Richard Posner & NAACP v. Button — A Short History - Concurring Opinions:

by Ronald K. Collins

"The case’s original name was NAACP v. Patty, which began in 1957. After cert. was granted, the case name changed to NAACP v. Gray. Later it would be changed to Button, the last name of the Virginia Attorney General at the time. The controversy involved a challenge to five Virginia laws which, according to Fourth Circuit Court Judge Morris Aimes Soper, “were enacted [in 1956] for the express purpose of impeding the integration of the races in the public schools of the state which the plaintiff corporations are seeking to promote.” The laws in question banned the encouragement of certain kinds of litigation (“barratry” statutes) and the solicitation of clients (including in pro bono cases) and/or the financing of litigation (“champerty” statutes). The lawyer who represented the NAACP was Robert L. Carter (1917-2012), Thurgood Marshall’s chief legal assistant (and later General Counsel to the NAACP). By 1957, recalled Carter in his memoir (A Matter of Law), the group was involved in 25 cases in various states employing barratry and champerty laws aimed at halting civil rights litigation. Henry T. Wickham (1920-2008) represented the state of Virginia. In his obituary it was noted that Mr. Wickham “served as a special assistant to former Virginia Attorney General J. Lindsay Almond Jr. representing Virginia in an effort to preserve segregated public schools” in Brown v. Board.

→ For an informative and thoughtful account of Button, see Harry Kalven, Jr., The Negro and the First Amendment 75-90 (1965).

The Hand of Fate

Robert Young Button was the Attorney General of Virginia (Dem. –1962-1970) who backed policies of Massive Resistance to prevent public school desegregation (see short video clip here)
When it came time for a conference vote in the Button case, Chief Justice Earl Warren, predictably, voted to reverse. “The purpose of the statute is obviously to circumvent Brown,” he said. Justice Hugo Black agreed. “This is part of a scheme to defeat the Court’s order, and sooner or later we will have to grapple with these problems in those terms. The NAACP is finished if this law stands.” 

But Justice Felix Frankfurter pushed back. “I can’t imagine a worse disservice than to continue being the guardians of the Negroes. . . . There is nothing in the record to show that this statute is aimed at Negroes as such.” Justices Tom Clark and Charles Evans Whittaker agreed. “To strike this law down, we would have to discriminate in favor of Negroes,” said Clark, to which Whittaker added: “We should be color blind on this law.” 

 Warren added up the votes. It was a five-to-four split in favor of the state of Virginia. Justice Frankfurter eagerly began work on his majority opinion upholding Virginia’s law—the laws that made the NAACP’s brand of non-pecuniary solicitation and financing of litigation a disciplinary offense that could result in disbarment. (For a discussion of Frankfurter’s early role in the case, see Mark V. Tushnet, Making Civil Rights Law 277-278 (1994).)"

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Wednesday, June 18, 2014

U.S. Patent Office Cancels Redskins Trademarks For Being 'Disparaging To Native Americans'

For twenty two years the Washington Redskins football team owners have fought to defend their name against assertions by Native Americans that the name is disparaging.  That is grounds for cancellation of a trademark.  The United State Patent and Trademark Office did just that in a 1999 decision.  But the decision was overturned on appeal on grounds that the time to object had expired.  A new challenge was filed in 2006.  Today the TTAB again ruled that the name is disparaging and canceled the trademark.  The decision is HERE. - gwc

U.S. Patent Office Cancels Redskins Trademarks For Being 'Disparaging To Native Americans':

by Eric Lach // Talking Points Memo

 "The United States Patent and Trademark Office has cancelled six of the Washington Redskins' trademark registrations, because they "were disparaging to Native Americans at the respective times they were registered."

The agency ruled Wednesday in a case brought by five Native Americans, who sought cancellation of the team's trademark registrations, arguing they violated the prohibition on registering "marks that may disparage persons or bring them into contempt or disrepute," as the agency wrote in its ruling.

"We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered," the agency wrote.

In emailed statements, the plaintiffs’ attorneys lauded the ruling as "historic.""

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Competing Values: Preserving Litigant Autonomy in an Age of Collective Redress by Linda S. Mullenix :: SSRN

The right of a client to consent to judgment, settlement, etc. is deeply embedded in the lore and practice of lawyers. It is enshrined in RPC 1.2. But the reality is that where claims are massed litigant control is minimal - whether for a small number of claimants  against a limited fund (as in an underinsured vehicle operated carelessly), against an insolvent where claims are aggregated and prioritized in bankruptcy; or mass tort claimants as in the BP Gulf oil spill or mass drug actions.

Linda Mullenix explores this problem through an examination of the work of District Judge Jack Weinstein. - gwc 

Competing Values: Preserving Litigant Autonomy in an Age of Collective Redress by Linda S. Mullenix :: SSRN:

In one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, Professor Abram Chayes in 1976 described a paradigm shift away from bipolar traditional litigation to a new model of public law litigation. Embedded in the traditional model was a deeply-held notion of litigant autonomy – that is, a fundamental right of any person to appear in his individual capacity to advocate for remediation of alleged wrongdoing. The concept of litigant autonomy reflected certain process and dignity ideals, including the psychological and cathartic values in individual representation. 
In his analysis of a changed litigation landscape, Professor Chayes concluded: “...from the perspective of the traditional model, the [new public law] proceeding is recognizable as a lawsuit only because it takes place in a courtroom before an official called a judge.” Judge Jack Weinstein’s judicial philosophy and class action jurisprudence were forged during this period, and he readily characterized mass tort cases as a new form of public law litigation. There is perhaps no judge more identified with the aggregate litigation movement of the late twentieth century and, in turn, Judge Weinstein’s landmark efforts have inspired generations of acolytes who have subscribed to and implemented his views on aggregate claim resolution.
Throughout the 1980s and 1990s judicial experiments addressing the efficient resolution of mass tort litigation were undergirded by a jurisprudential debate pitting collective redress mechanisms against arguments for litigant autonomy. By the end of the twentieth century, the proponents of aggregate claim resolution had prevailed over competing theories of litigant autonomy. However, arguments centered on litigant autonomy have endured and received renewed advocacy in era of twenty-first century of informal aggregation techniques.
This article suggests that Judge Weinstein’s jurisprudential odyssey illuminates the interesting tension between litigant autonomy and collective redress. Ironically, the judge so closely identified with compassionate treatment of individuals became the leading advocate for collective redress. The article discusses how, in the United States, concepts of collective redress and aggregate settlements prevailed over notions of litigant autonomy. In light of this, the article questions whether it is worth revisiting this debate and the values embraced by litigant autonomy, which values largely have been displaced by the triumph of aggregate claim resolution. 
The article concludes with reflections on the current European movement for collective redress mechanisms. EU countries have seriously considered the debate between collective redress and litigant autonomy, and have concluded – unlike the United States – that any emerging EU collective redress model must preserve the deeply-held European civil law notion of the fundamental right to litigant autonomy. The EU experience suggests a compromise means for implementing collective redress regimes while preserving this fundamental right.

This is a draft paper as part of the 20th Annual Clifford Symposium on Tort Law and Social Policy, In Honor of Judge Jack Weinstein: Judge Jack Weinstein's Impact on Civil Justice in America
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Tuesday, June 17, 2014

UPDATED: NJ Senate panel approves Rabner, Solomon for Supreme Court |

With yesterday's confirmation of Chief Justice Stewart Rabner and the newly appointed Lee Solomon the New Jersey judiciary crisis has abated.  It was created when on ideological and political grounds Gov. Chris Christie rejected two justices up for tenure.  that violated a sixty year old practice.  Judges were nominated for tenure after their first seven year term only if there had been bad behavior on or off the bench.

Although the Court has been nudged to the right, it has not - and now will not - repudiated its landmark open housing and school funding decisions.  Christie's plan to remake the Supreme court has been defeated.  There remains one vacancy but that is held by the moderate liberal senior Appellate Judge Mary Catherine Cuff who the Governor and Democrat leaders agreed may remain in place until she reaches mandatory retirement age in 2017.

Much work remains.  There are over forty vacancies in the state's 420 member Superior Court bench.  A constitutional amendment to grant tenure except for cases of misconduct will likely lose momentum, though extension of the mandatory retirement age of seventy may gain some force.

The Court's next crisis will come soon when the legality of the Governor's proposed default on pension obligations reaches the court.  And after that the court will have to decide the constitutionality of a statute that permits recall of judges over the mandatory retirement age.That measure has long helped the courts function despite numerous vacancies. - gwc

NJ Senate panel approves Rabner, Solomon for Supreme Court |

by Salvador Rizzo //The Star Ledger

A state Senate panel cleared Chief Justice Stuart Rabner for a tenured term on the New Jersey Supreme Court today, and approved Superior Court Judge Lee Solomon’s nomination to become an associate justice.
After a day of intense questioning by the Senate Judiciary Committee, both nominations now head to the full Senate. Rabner, 53, and Solomon, 59, are expected to win final confirmation, the result of an agreement between Gov. Chris Christie and Senate President Stephen Sweeney (D-Gloucester).
Many legal observers doubted that the Republican governor — an outspoken critic of the Supreme Court and its rulings on school financing and affordable housing — would reappoint the Democratic chief justice.
But Christie gave Rabner a strong vote of confidence last month, clearing the way for him to lead the high court until he reaches the mandatory retirement age of 70, in 2030. In return, Democrats agreed to elevate Solomon to one of two court vacancies. A seventh seat remains to be filled.
"I think you have all the necessary skills and temperament to be the best chief justice that the state has ever seen," Sen. Nicholas Scutari (D-Union), the chairman of the Judiciary Committee, told Rabner.

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Truckers Resist Rules on Sleep, Despite Risks of Drowsy Driving -

Senator Susan Collins (R-ME) has gotten the Senate Appropriations Committee to put truckers rest regulations on hold. She says they cut down on night time trucking, putting more truck on the road during the day.
Advocates for Highway Safety vigorously disagrees, seeing only special interest lobbying atwork.

Is this an example of why regulations should be evidence, not binding determinants of what is required by the duty of reasonable care under the circumstances? - gwc

Truckers Resist Rules on Sleep, Despite Risks of Drowsy Driving -

by Jad Mouawad and Elizabeth Harris
"The tractor-trailer set off at 2:30 a.m. from Springfield, Mo., the usual time and place. Nearly 11 hours later, along the Will Rogers Turnpike in Oklahoma, fatigue caught up.

At mile marker 321.5, near the town of Miami, the semi plowed into a line of cars stopped on the highway. Ten people were killed. The 76-year-old truck driver, who survived, had probably fallen asleep, federal investigators later concluded.

What is remarkable about these events, which took place five years ago this month, is how common such accidents are. For decades, federal authorities have tried to ensure that truck drivers get adequate rest. But in a business that lives by the clock, miles mean money. Commercial truck operators have resisted, arguing, in effect, that Washington cannot regulate sleep.

Continue reading the main story
But now sleep-deprived driving — an open secret among truckers — has once again come to the fore, after the June 7 accident involving the comedian Tracy Morgan on a dark stretch of the New Jersey Turnpike 45 miles south of New York City. Prosecutors say the Walmart truck driver whose tractor-trailer slammed into a van carrying Mr. Morgan, critically injuring him and killing another passenger, had not slept in more than 24 hours."
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Friday, June 13, 2014

Portee claims - what does i mean to observe the accident? - Appellate Law NJ Blog

by Bruce D. Greenberg

- Appellate Law NJ Blog: "Litwin v. Whirlpool Corp., ___ N.J. Super. ___ (App. Div. 2014).  In Portee v. Jaffee, 84 N.J. 88 (1980), the Supreme Court established “a cause of action for damages to a bystander as a result of witnessing an injury-producing event to one with whom the bystander has an intimate or familial relationship,” as this opinion by Judge Sapp-Peterson summarized it.  One element of a Portee claim is “[o]bservation of the death or injury at the scene of the accident.”  The issue here, on leave to appeal granted after the Law Division awarded partial summary judgment to certain defendants, was whether, under the facts of this case, plaintiff had satisfied that test.  An additional question was whether plaintiff had made a sufficient case for severe emotional distress.  Applying the same summary judgment standard that governed in the Law Division, but reviewing legal conclusions de novo, the Appellate Division reversed on both issues.

 The facts were as follows.  Late one night, plaintiff and his stepson were awoken by the sound of a smoke detector that indicated a fire in their home.  They saw smoke rising from downstairs and sheltered in plaintiff’s bedroom.  The stepson later ran into the hallway, which was smoky and full of flames.  Plaintiff called out to him, but when the stepson did not respond, plaintiff, believing that the stepson had escaped, himself got out through a second-floor window and was rescued.  Shortly after that, however, he saw firefighters bringing his stepson’s body, still burning and smoking, with his skin melting, out of the house.  The stepson had third-degree burns over 56% of his body.  He later died.

Attributing the fire to a defective Whirlpool dishwasher model that had been recalled due to a fire hazard, plaintiff sued Whirlpool and two defendants who had serviced the dishwasher in connection with the recall.  Whirlpool settled.  The other two defendants pursued a motion for partial summary judgment on the two issues discussed above."

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Rethinking the 2d Circuit's Reversal of Judge Rakoff on Citigroup Settlement // James Stewart // NY Times

James B. Stewart, the Times business writer has a good piece on the Second Circuit's reversal of Judge Jed Rakoff's refusal to approve the S.E.C.'s settlement with Citigroup Global Markets.  Taking  a separation of powers approach he actually offers his own dissent to the majority opinion. - GWC
Rethinking Court’s Reversal of S.E.C. Challenger -

Video - James B. Stewart on CNBC
STEWART, Circuit Judge:
The issue before this court isn’t whether Citigroup engaged in fraud in marketing complex mortgage-backed securities in the run-up to the financial crisis, as the S.E.C. said in its complaint. Maybe it did and maybe it didn’t.
Nor is it our function to determine the appropriate fines or penalties. As part of the proposed settlement, Citigroup has agreed to pay $285 million and to refrain from future such conduct. Whether that’s a slap on the wrist or excessive punishment or just right isn’t for the courts to decide. Rather, the standard is whether the settlement is “fair and reasonable.”
Thus, the question before this court is simply whether a district court judge can declare a settlement to be fair and reasonable if that judge knows nothing about the facts of the case.

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Thursday, June 12, 2014

Pom can sue Coca Cola for false advertising

Embedded image permalink
Warning:contains no pomegranate, no blueberries.
We just call it that!
A rare plaintiff's win in the Supreme Court in POM Wonderful v. Coca Cola.
from the Syllabus:
Petitioner POM Wonderful LLC, which produces, markets, and sells, inter alia, a pomegranate-blueberry juice blend, filed a Lanham Act suit against respondent Coca-Cola Company, alleging that the name, label, marketing, and advertising of one of Coca-Cola’s juice blends mislead consumers into believing the product consists predominantly of pomegranate and blueberry juice when it in fact consists
predominantly of less expensive apple and grape juices, and that the ensuing confusion causes POM to lose sales. The District Court granted partial summary judgment to Coca-Cola, ruling that the FDCA and its regulations preclude Lanham Act challenges to the name and label of Coca-Cola’s juice blend. The Ninth Circuit affirmed in relevant part.
Held: Competitors may bring Lanham Act claims like POM’s challenging
food and beverage labels regulated by the FDCA.

Opinion analysis: Court’s narrow reading of Superfund’s preemption provision leaves victims of toxic exposure without legal recourse : SCOTUSblog

Bob Percival - a leading voice on environmental justice - nails it.  Almost every trip to the U.S. Supreme Court is another nail in the coffin for consumers seeking justice. - gwc

Opinion analysis: Court’s narrow reading of Superfund’s preemption provision leaves victims of toxic exposure without legal recourse : SCOTUSblog:

by Robert Percival // University of Maryland

Yesterday in CTS Corp. v. Waldburger, the Court ruled – by a vote of seven to two –that the provision of the federal Superfund law (the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA) that tolls state statutes of limitations until after victims of toxic exposure have discovered their harm, 42 U.S.C. § 9658, does not apply to state statutes of repose. Statutes of repose set deadlines on the filing of litigation that do not turn on when harm is first discovered. 
The decision rested on the majority’s interpretation of the statutory language of CERCLA, which refers only to “statutes of limitations” and not “statutes of repose.” Even though two of the Justices in the majority admitted at oral argument that they were not aware until recently of any distinction between the two, the majority concluded that Congress had been aware of the distinction when it amended CERCLA in 1986. Justice Ginsburg and Justice Breyer dissented, finding that Congress had implicitly preempted statutes of repose because they interfere with the congressional purpose of preserving legal recourse for victims of toxic exposures that cause harm with long latency periods.

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Sunday, June 8, 2014

BP must pay Clean Water Act fines for gulf oil disaster, appeals court says |

BP must pay Clean Water Act fines for gulf oil disaster, appeals court says |

Assciated Press June 4, 2014

The owners of the blown-out Macondo well may not avoid federal fines for the 2010 Gulf of Mexico oil disaster by blaming another company's failed equipment, the 5th U.S. Circuit Court of Appeals  ruled Wednesday. The oil came from a well owned by BP and Anadarko Petroleum Corp., so they are liable, the court said.
The ruling upheld a 2012 decision by U.S. District Judge Carl Barbier. He has scheduled a trial in January to help decide how much the oil giant owes in federal Clean Water Act penalties.
"We hope the court's decision will be one more step toward reaching a just conclusion for the American people," U.S. Justice Department spokesman Wyn Hornbuckle said.
BP had no comment on the ruling, the 5th Circuit's second against the oil giant in less than two weeks. The court ordered BP on May 27 to resume paying claims while it asks the U.S. Supreme Court to review its settlement with some businesses. A 2-1 judgment putting that order into effect was filed May 28.
Anadarko was reviewing Wednesday's ruling and its options, spokesman John Christiansen said.
Loyola University law professor Blaine LeCesne said he doubts Anadarko will have to pay much, if anything, in Clean Water Act fines because its partnership gave BP complete control over how the well was drilled and run.
In 2011, Anadarko agreed to pay BP $4 billion. BP said that payment would be part of its $20 billion fund to compensate people and businesses hurt by the spill.
Transocean Ltd., which owned the Deepwater Horizon drilling rig and the blowout preventer, pleaded guilty last year to a misdemeanor Clean Water Act violation and agreed to pay a $1 billion fine.
BP and Anadarko had argued that failure of Transocean's blowout preventer caused the explosion, which killed 11 men on April 20, 2010, and spewed oil into the Gulf of Mexico until the well was capped that July 15. They also argued that although the oil was from their well, it got into the gulf from the pipe connecting the well to the rig. That riser was ripped apart when the blazing rig sank.

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GM launches compensation program for crash victims | BlackPressUSA

The federally financed restructuring through bankruptcy of General Motors wiped out debts for torts arising before the discharge.  But public pressure compelled GM to look back at the Coblt ignition switch design flaw that caused ignition and airbag failures, and thirteen deaths.  The company's report is here.  GM concluded that though there was no "cover up" a pattern of incompetence had been demonstrated.  And that their lawyers had been among the offenders (see pp. 104-110, 139-140, and 264-266.).

But a better reading of the facts is that GM and its lawyers fraudulently concealed the design defect and therefore do not merit the clean slate the bankruptcy discharge would otwerwise bring it.  The automaker appointed superstar mediator Kenneth Feinberg to help them resolve the issues.  It appears that a "voluntary" compensation program is about to begin. - gwc

GM launches compensation program for crash victims | BlackPressUSA: "DETROIT (AP) — General Motors plans to launch a program to compensate crash victims or families affected by an ignition switch problem that is linked to at least 13 deaths in crashes of older GM cars.
The company said it expects the program will start accepting claims Aug. 1, but didn’t specify how much money will be involved. Guidelines and other details will be developed in the coming weeks by compensation expert Kenneth Feinberg, GM said. 

GM has recalled 2.6 million older small cars to repair the ignition switches. A report issued Thursday said it took GM more than a decade to issue the recall partly because employees improperly viewed the switch defect as a “customer satisfaction” issue instead of a safety problem.
GM announced the hiring of Feinberg in April. He previously handled the Sept. 11 Victim Compensation Fund as well as funds for victims of the Boston Marathon bombing and the BP oil spill.
Feinberg told The Associated Press that the timeline means “I have my work cut out for me.” During the next few weeks, he said he’ll speak with plaintiff’s lawyers, lawmakers, public interest groups and GM officials.

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Thursday, June 5, 2014

Second Circuit Vacates Judge Rakoff’s Rejection of SEC’s Citigroup Settlement | The D&O Diary

As we discussed here the Second Circuit, not unexpectedly, overturned Judge Jed Rakoff's rejection of the S.E.C enforcement action settlement with Citigroup Global Markets in one of those big "collateralized debt obligation" deals in which Citigroup itself bet with the proponent of the deal  that the indexed securities would fall in price.  Citi did not disclose its own position.  Rakoff's rejection of the settlement as unsupported factually, containing no admission of fault, and of $350 million as "pocket change" galvanized public debate.  Kevin LaCroix lays out the June 4, 2014 Second Circuit opinion  and concludes with this take.. - gwc

Second Circuit Vacates Judge Rakoff’s Rejection of SEC’s Citigroup Settlement | The D&O Diary:

by Kevin LaCroix

Even though the Second Circuit rejected Judge Rakoff’s refusal to accept the Citigroup settlement, his unwillingness to accept the settlement has had a significant impact. It is arguable that the SEC might not have adopted its new policy requiring admissions of liability if Judge Rakoff had not forced the issue onto the enforcement agenda. Judge Rakoff’s concerns have also encouraged other judges to scrutinize SEC settlements and to ask hard questions about the terms on which the SEC has settled.
 But while Judge Rakoff’s rejection of the Citigroup settlement may have elevated the debate on these issues, in the end the appellate court flatly rejected Rakoff’s perspective on court’s role in reviewing SEC settlements. Rakoff’s opinion rejecting the settlement was emotional, projected a high moral tone, and reflected a theoretical consideration of the issues. The appellate court’s perspective, by contrast, was (it said itself of agency settlements) “pragmatic.” The appellate court’s opinion also reflected a more restrained and deferential conception of the role of the district court.
 While compromises of disputed claims are less satisfying than a determination of issues of fault and liability, the system might grind to a halt if parties cannot compromise, The practical reality is that if the SEC is not free to compromise disputed claims without an admission of liability, then the parties are going to be far less likely to compromise, an outcome that would impose enormous costs on the litigants and burdens on the courts.  

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Wednesday, June 4, 2014

Appeals Court Overturns Decision to Reject S.E.C.-Citigroup Settlement -

Appeals Court Overturns Decision to Reject S.E.C.-Citigroup Settlement -

by Ben Protess and Matthew Goldstein

A federal appeals court on Wednesday overturned a judge’s decision to reject a federal settlement deal with Citigroup, undercutting the judge’s concerns that the bank got off with little more than a slap on the wrist.
In a long-awaited 28-page opinion, a three-judge panel of the United States Court of Appeals for the Second Circuit  concluded that the trial judge “abused its discretion by applying an incorrect legal standard in its review” of the case. The harsh rebuke of the judge, Jed S. Rakoff, now sets in motion a process that will most likely lead to the deal being approved.

'via Blog this'

Tuesday, June 3, 2014

Spring 2014 Remedies Exam and best paper

For my spring 2014 Remedies class here are the Exam and the best paper on this 48 hour take-home exam.

United States Opposes Cert Petition in Stengel v. Medtronic

Arguing that there is no ripe circuit conflict and that "(t)ort claims based on a manufacturer’s failure to update its product’s labeling to account for new safety information ordinarily are not impliedly preempted" the Department of Justice in the Solicitor General's amicus brief has opposed Medtronic's petition for certiorari in Stengel v. Medtronic Inc., 704 F.3d 1224 (9th Cir. Ariz. 2013.  The Ninth Circuit held en banc that a post-sale failure to warn claim is not impliedly pre-empted by the Medical Device Amendments because the Arizona tort claim is "parallel" to the FDCA and does not constitute an additional "requirement".
The product at issue - an implanted pump that delivers pain medication to the spine - caused permanent paraplegia to Richard Stengel.  Medtronic failed to report its knowledge of the complication (acquired post-FDA approval).  That, said the Circuit presented no conflict with federal law, i.e. it is a "parallel claim" - a thicket that Brian Wolfman and Anne King have lucidly described:  Mutual Pharmaceutical Co. v. Bartlett and Its Implications (November 5, 2013). The United States Law Week (BNA), Vol. 82, pp. 1-18, 2013.