BP: New evidence backs call to oust spill claims czar

BP: New evidence backs call to oust spill claims czar: "NEW ORLEANS --

BP is turning up the heat in its efforts to remove the claims administrator it blames for "hijacking" its multibillion-dollar oil spill damage settlement with individuals and businesses.

It presented emails and billing records it says prove that Patrick Juneau helped individual claimants in their disputes with BP during his time as a contract lawyer for the state of Louisiana, prior to becoming a neutral administrator of BP's settlement with some of those same claimants.

 The oil giant first asked a federal judge in September to oust Juneau, the Lafayette lawyer BP and plaintiffs jointly supported two years ago to run the court-supervised economic settlement claims program.

 BP said then that it had learned, belatedly, that Juneau had a contract with the state of Louisiana in 2010 and 2011 advising the government about BP's pre-settlement claims process, run by Ken Feinberg. The company said Juneau's work for the state had been adversarial to BP and his failure to disclose it during the process of selecting a settlement administrator should disqualify him from continuing in that role.

 Juneau responded earlier this month by arguing that BP was not being "candid" with the court, was taking some of his comments out of context and was mischaracterizing his work for Louisiana. He called himself simply a "liaison" who "did not serve as a lawyer in the matter in controversy.""



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J&J may settle another group of ASR metal hip implant cases

J&J may pay $250 million more to settle ASR Hip Implant Cases/Bloomberg BusinessWeek
by Jeff Feely

Johnson & Johnson (JNJ:US) may pay more than $250 million to resolve suits over its ASR hip implants that were excluded from a $2.5 billion settlement of similar claims last year over the device’s failure, two people familiar with the accord said.

J&J, the world’s largest seller of health-care products (JNJ:US), is weighing whether to settle more than 1,000 lawsuits over removals of the recalled hip implants that occurred after August 2013, said the people, who requested anonymity because they weren’t authorized to speak publicly about the accord. The hips were made by J&J’s DePuy unit.

The company is considering extending the same settlement terms that covered patients who had their ASR implants removed earlier than last summer, the people said. Under that accord, J&J agreed to pay an average of about $250,000 per surgery and cover related medical costs to resolve about 8,000 cases.

“This is a sign that J&J is trying to get a solid handle on its whole ASR problem,” said Carl Tobias, who teaches product-liability law at the University of Richmond in Virginia. “They are not done paying yet, but they are moving in the right direction.”

If J&J resolves the additional suits, it will have settled about 75 percent of its total U.S. caseload. The total cost of the settlements over ASR, which stands for articular surface replacements, may exceed $4 billion by the time J&J resolves the remaining implant cases, Tobias said. The accord doesn’t cover hip litigation outside the U.S.

Hip Implants

J&J and DePuy recalled 93,000 ASR hip implants worldwide in August 2010, saying 12 percent failed within five years. Internal J&J documents showed 37 percent of ASR hips failed after 4.6 years. The failure rate in Australia in 2012 was found to be 44 percent over seven years of use

Put Texas voting back under Federal Supervision // Richard Hasen

Messing With Texas Again: Putting It Back Under Federal Supervision:
By Richard L. Hasen (UC Irvine)
 Readers of the entire 147-page opinion issued earlier this month by a federal district court striking down Texas’s strict voter identification law as unconstitutional and a violation of the Voting Rights Act might have been too exhausted to realize that the opinion’s very last sentence may be its most important.
The court ended its opinion with a dry statement promising a future hearing on “plaintiffs’ request for relief under Section 3(c) of the Voting Rights Act.” That hearing, however, has the potential to require Texas to get federal approval for any future voting changes for up to the next decade, and to make it much more difficult for the state to pass more restrictive voting rules.
It may be much more important than the ruling on the voter ID law itself. From 1975 through 2013, Texas was one of a number of (mostly Southern) states and jurisdictions which were subject to “preclearance” under Section 5 of the Voting Rights Act. This meant that before Texas could make any changes in its voting rules (such as enacting a voter identification law or passing a new redistricting plan) it had to demonstrate either to the United States Department of Justice or to a three-judge federal court in Washington D.C. that its change was not intended, and would not have the effect, of making minority voters worse off."

One Size Doesn't Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism by Martin H. Redish, Julie M. Karaba :: SSRN

"MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law....
The most immediate response to reliance on the utilitarian calculus is that it completely ignores any concern with individual dignity or autonomy, which are properly deemed to provide the theoretical DNA of the Due Process Clause...
Whereas class action in every case requires a transparent judicial finding of adequate representation of the interests of absent claimants, MDL has no such requirement.  Whereas in most class actions absent class members have the right to opt out of the proceeding, MDL provides no means either for withdrawing from the proceeding or even meaningfully challenging the legality or propriety of inclusion within it. "
- Redish & Karaba

One Size Doesn't Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism by Martin H. Redish, Julie M. Karaba :: SSRN:

"Multidistrict litigation (“MDL”) has, in recent years, become so central a device in complex litigation as to be almost routine. As authorized by federal statute, the Multidistrict Litigation Panel of federal judges regularly transfers cases which may share no more than one common issue from federal districts all over the nation into a single transferee district. The transferee court is then in charge of all pre-trial procedure for all of the cases on a collective basis. This includes conduct of discovery as well as pre-trial motions, including summary judgment.



While the transferee district is not permitted to adjudicate the merits of the individual suits at trial (other than in the form of several test cases, binding only on the specific litigants involved), as a practical matter cases return to their transferor districts very rarely. Instead, there is constant pressure to form a global settlement. While individual claimants may opt out of that settlement, the settlement usually effectively ends the process.

The claimants’ pre-trial cases are controlled by an appointed steering committee of selected attorneys.

Although much has been written on the subject of multidistrict litigation, none of that scholarship to this point has directly challenged the constitutionality of the process. This Article, in contrast to all prior scholarship, conducts a frontal assault on the constitutionality of MDL as a stark violation of the individual claimant’s due process right to her day in court. In so doing, the Article explores the underlying political and constitutional theory of a litigant’s right to her day in court, and explains how current MDL practice unambiguously undermines that right.

MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law. The Article considers and rejects the supposed utilitarian values of efficiency attained by use of MDL as an asserted justification for the serious interference with the individual’s control of her own case.

In making its case against the constitutionality of MDL, the Article contrasts the methods by which class action procedure — itself subject to several challenges over the years on due process grounds — seeks to protect the due process rights of absent class members. The Article concludes that whatever due process problems impact class actions pale in comparison to the dangers deriving from the crude form of procedural collectivization imposed by MDL. The Article ends with an exploration of ways in which MDL’s constitutionality might be salvaged through important modifications in its processes."



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Deaths linked to GM's faulty ignition switch rise to 30 | Reuters

Deaths linked to GM's faulty ignition switch rise to 30 | Reuters: "(Reuters) - A program that compensates victims of accidents caused by a faulty ignition switch in General Motors (GM.N) vehicles has approved one new death claim, bringing to 30 the total number of fatalities linked to the issue so far, according to a report on Monday.

Since it began accepting claims on Aug. 1, the program has received 1,580 claims for deaths and injuries, said the report from the office of attorney Kenneth Feinberg, who was tapped by GM to run the program. The report listed all of the claims received and approved as of Friday.

GM has been criticized for waiting 11 years to begin recalling millions of cars with ignition-switch problems that have been linked to fatalities."



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Mandatory Quarantines Have Negative Consequences//Dr. Fauci, NIH Director

NIH Official: Mandatory Quarantines Have Negative Consequences:

WASHINGTON (AP) — Mandatory 21-day quarantines on health care workers returning from Ebola-ravaged West Africa, like those put in place by three states, can have the unintended consequence of discouraging them from volunteering, a top federal health official said Sunday.

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said that as a physician and scientist, he would have recommended against a quarantine.

"The best way to protect us is to stop the epidemic in Africa, and we need those health care workers so we do not want to put them in a position where it makes it very, very uncomfortable for them to even volunteer to go." he said.

He said active and direct monitoring can accomplish the same thing as a quarantine because people infected with Ebola do not become contagious until they start showing symptoms. Ebola is transmitted through direct contact with the bodily fluids of an infected person.

New York, New Jersey and Illinois imposed mandatory quarantines after Dr. Craig Spencer, a Doctors Without Borders physician who treated patients in Guinea, was diagnosed with Ebola last Thursday. The doctor, who is now in isolation at New York's Bellevue Hospital, had been on the subway, went bowling and to a park and restaurant before showing symptom

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Johnson & Johnson wins first Pinnacle Hip Implant Trial

Johnson & Johnson's DePuy wins first trial over Pinnacle hips | Reuters
By Jessica Dye and Lisa Maria Garza Oct 23 (Reuters)

 Johnson & Johnson was found not liable by a Texas jury on Thursday in the first case to go to trial over whether Pinnacle hip implants made by the company's DePuy Orthopaedics unit were defective.

The test case had high stakes for the pharmaceutical giant, which is hoping to avoid a replay of a $2.5 billion settlement it agreed to last year for a different metal-on-metal hip device.

The Dallas federal jury ruled unanimously against the plaintiff Kathleen Herlihy-Paoli, who said the two metal-on-metal Pinnacle hips she received in 2009 were faulty and that the company failed to warn patients and doctors about the device's risks.

DePuy had said the implants were improperly positioned, and not to blame for her injuries. Jurors needed about two days to deliberate, after a seven-week trial.

Plaintiffs' lawyers selected Herlihy-Paoli's lawsuit to be among the first to go to trial out of more than 6,600 lawsuits over the Pinnacle hips. The unanimous win for DePuy is expected to affect its approach to the rest of the lawsuits, which are consolidated before U.S. District Judge Ed Kinkeade.

DePuy spokeswoman Mindy Tinsley said the company was pleased with the verdict and was committed to the "long-term and vigorous defense" of the litigation.

The metal-on-metal device "was appropriately developed, thoroughly tested and responsibly marketed," she said in a statement.

A lawyer for Herlihy-Paoli, Mark Lanier, called the case "the first skirmish in what is likely to be a long war."

"We still plan to press on with fierce dedication to clients we believe have been tragically wronged," he said.

Herlihy-Paoli said she required multiple surgeries to fix and replace her implants after the surrounding tissue became infected and the level of the metal cobalt in her blood soared to 85 times the normal level.

Her 2012 lawsuit said the device's metal components rubbed together, shedding metal ions.

At trial, lawyers for Herlihy-Paoli accused DePuy of aggressively marketing the devices to more active people, while concealing abnormally high failure rates.

DePuy's lawyers countered that the devices were safe when used and implanted properly. They also said Herlihy-Paoli unfairly targeted DePuy for problems linked to different metal-on-metal hips, such as the company's ASR devices.

At trial, lawyers for Herlihy-Paoli accused DePuy of aggressively marketing the devices to more active people, while concealing abnormally high failure rates.

DePuy's lawyers countered that the devices were safe when used and implanted properly. They also said Herlihy-Paoli unfairly targeted DePuy for problems linked to different metal-on-metal hips, such as the company's ASR devices.

Last year, DePuy agreed to pay $2.5 billion to settle more than 7,000 lawsuits over the ASR devices, which it recalled in 2010.

DePuy stopped selling the metal-on-metal Pinnacle devices in 2013.

Carl Tobias, a University of Richmond law professor, called the verdict surprising and said jurors may have responded to DePuy's argument that the hips may have been improperly positioned.

"They can take some comfort in this verdict," he said, referring to DePuy. "But I'm sure there will be more."

The case is Herlihy-Paoli v. Pinnacle, U.S. District Court for the Northern District of Texas, No. 12-4975.

O'Reilly: OK, Jon Stewart Was Right About One Thing In 'White Privilege' Debate

Our first Levitt house on Pond Lane
looked just like this one

We grew up in Levittown, Bill O'Reilly and I.  We both went to Catholic high schools - he at Chaminade in Mineola, me at Brooklyn Prep.  Growing up in an all-white town I never spoke to a Black person until I was in high school.  In 1957 we moved to Massapequa. No racial covenants in the deeds but 100% white.  No accident, of course.
But there is an error in O'Reilly's concession.  The FHA did not include clauses requiring sales only to Caucasians in its terms for insuring home mortgages.  But the FHA did go along with racial red-lining.  In 1948 the Supreme Court declared racial restrictions in deeds to be unenforceable in Shelley v. Kraemer.  But private discrimination was not unlawful until 1968, the year after O'Reilly graduated from high school.  That year the Congress passed the Fair Housing Act.  That year in Jones v. Alfred Mayer Co. the Supreme Court declared in a case of "first impression"  that the long dormant Civil Rights Act of 1866 barred purely private discrimination in the sale of real estate, not just government enforcement of such agreements. Congress's power was rooted not in the 14th Amendment but in its power under the 13th Amendment to eliminate the effects of slavery. - gwc

O'Reilly: OK, Jon Stewart Was Right About One Thing In 'White Privilege' Debate

 "Fox News host Bill O'Reilly conceded on Wednesday night that comedian Jon Stewart was at least right about something during their debate about white privilege.

O'Reilly, a skeptic of the idea that white privilege even exists in modern America, faced off against the host of Comedy Central's "The Daily Show" last week. During the debate, Stewart pointed out that O'Reilly's hometown of Levittown, N.Y., at one time didn't allow blacks to live there and was built as a racially segregated community.

 On Wednesday night, O'Reilly dissected the debate with guest and Fox senior correspondent Eric Shawn.

"Stewart is correct, Shawn, that blacks couldn't move into Levittown in 1950," O'Reilly said. "When did that change?"

"Well, he's correct because the federal government actually backed that," Shawn said. "The Federal Housing Administration had a covenant in the lease of the house that your parents owned that said that it could only be used by caucasians. That started to change in '54, '55 with some court cases."

 "Mmhmm," O'Reilly said.

"But still, Levittown, by 1960 out of 15,000 homes there were still only 15 owned by African Americans," Shawn said.

O'Reilly noted that the Fair Housing Act prohibited discrimination against black people after 1968.

"So Stewart is right that there was a period of time but the mistake he makes is that there was some kind of privilege associated with living in Levittown," O'Reilly said. "He's making it out to be Bel Aire. Trust me, it was a good place to grow up because there were a lot of kids, but there wasn't any privilege involved in growing up there."

"And black on Long Island lived in places like Hempstead and Westbury," O'Reilly added. "Some of those neighborhoods were good and some of them weren't. But there was integration so we have to give Stewart props for history. Right. But white privilege extending out? Wrong.""



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Jury deliberations begin in first trial over DePuy's Pinnacle hips | Reuters

Jury deliberations begin in first trial over DePuy's Pinnacle hips | Reuters:

"In his closing argument Tuesday, a lawyer for Herlihy-Paoli, Mark Lanier, said DePuy aggressively pushed the metal-on-metal devices for younger patients with active lifestyles, saying they could last longer than versions made with other materials such as ceramic or polyethylene, a type of plastic.

But in doing so, Lanier said, the company ignored years’ worth of data suggesting that metal-on-metal hips failed at an abnormally high rate, putting thousands of patients at risk.

"Send a clear message that holds them accountable," Lanier told jurors. He asked them to award at least $1.4 million for Herlihy-Paoli's medical costs and an additional, unspecified amount in punitive damages."



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O'Bannon anti~trust lawyers seek $50 M fees

O'Bannon Lawyers Move for $50M in counsel fees against NCAA -
 Sports Illustrated

The lawyers for the plaintiffs in the class-action antitrust lawsuit against the NCAA featuring former UCLA basketball star Ed O'Bannon want more than $50.2 million in attorneys' fees and other costs from the NCAA, [according to the Memorandum of Law filed by class counsel]

The lawyers submitted a request in August asking for $52.4 million, but did so to comply with rules that said they had to submit billing within 14 days of an upending judgment.

The plaintiffs' lawyers had until Tuesday to file an amended version of their request and the NCAA has until Dec. 23 to file a response to the filing.

The plaintiffs, led by Hausfeld LLP, now are seeking $44,972,407 in attorneys’ fees and recoverable costs and expenses of $5,277,209. According to the filing, the lawyers fees were billed from $985 per hour for senior partners with experience of more than 40 years to $175 per hour for the most junior associate.

According to the filing, Michael Hausfeld’s law firm oversaw the work of 31 law firms in the case, down from the 43 law firms from the fees-and-costs motion that was submitted in August. Hausfeld's firm claims they have spent more the 27,300 hours on the case, from March 2009 to the end of July of this year.

In August, U.S. District Judge Claudia Wilken ruled that the NCAA violated antitrust law by preventing student-athletes from being compensated for their name, image and likeness rights.

Wilken's ruling allows schools to pay athletes licensing money into a trust fund starting in 2016. Financial damages were not part of the trial, but Wilken said the plaintiffs "shall recover their costs from the NCAA."

Feinberg backs BP bid to overturn settlement

Kenneth Feinberg, who worked for BP settling Gulf oil spill cases while claiming to be independent, is trading again on his reputation as a modern day Edward the Confessor.  He has urged the Supreme Court to grant cert in BP's attack on the deal it negotiated but now regrets in part.

His amicus brief declares "Amicus Kenneth R. Feinberg was selected by Executive Branch officials to help design, implement, and administer two successful alternatives to the conventional tort litigation system."  ``Selected by Executive Branch officials' is cagey.  True for the 9/11 Fund, not for the BP spill.  He was "selected" by BP and presented at a June 2010 White House press conference to spread pacifying oil on the troubled waters of public opinion as the Gulf region reeled from the still uncontained spill.

In an incidental irony BP is trying to remove Patrick Juneau as court-appointed settlement administrator.  They claim not to have known Juneau had represented Louisiana in dealing with the Feinberg-administered "Gulf Coast Claims Facility".  Feinberg, of course, knew, so in my view his principals are chargeable with that knowledge.   MDL judge Carl Barbier ruled that Feinberg was BP's agent. - gwc

Mass Tort Litigation Blog:

By Alexandra Lahav (UConn Law School)

The papers in the Deepwater Horizon Settlement cert petition are mostly in.   The case is BP Exploration & Production Inc. v. Lake Eugenie Land & Development, Inc. -- you can find the documents on SCOTUSBLOG.

BP's basic argument is that the settlement approved by Judge Barbier in the mass tort class action against it was ultra vires because it contemplated giving money to people who were, according to BP, not injured.  The plaintiffs respond that BP is just trying to overturn a settlement it championed through the backdoor now that its unhappy with the deal.

One of the most interesting briefs filed in this dispute is from Kenneth Feinberg, who oversaw both the 9/11 Victims Compensation Fund and the Gulf Coast Claims Facility.
The latter was the entity that settled claims arising out of the Deepwater Horizon oil spill immediately after it happened.

Feinberg is a world class mediator and one of the most prominent figures in the mass tort world.   The class action settlement that BP is now disputing is the successor to the Gulf Coast Claims Facility, which he headed.   What the class action did that the Gulf Coast Claims Facility could not do is give BP global peace. In other words, all civil claims against BP arising out of the oil spill are precluded by that class action settlement.
Feinberg's brief asks the Supreme Court to grant cert.  The argument is basically the following: claim facilities like the ones he ran apply a causation requirement that parallels that of the tort system. But, he argues, the settlement agreed to by BP does not include as strong a causation requirement, and this threatens the possibility of future compensation funds to solve mass torts. The brief explains:

..the Fifth Circuit's decisions in this case affecting the causation standard, if permitted to stand, threaten to make these sorely needed alternatives to mass tort litigation unlikely to be replicated.  Future funds would either adopt the Fifth Circuit's new standard, thereby threatening to overwhelm the claims process with spurious claims, or continue to require causation, thereby channeling claimants toward litigation where the burden of proof is lower. (Feinberg petition at 6).
This argument seems to me to be just wrong.  The settlement imposed a looser causation requirement than tort law requires.  But that causation requirement was agreed to in order for claimants collect under the settlement; it is not the causation requirement of the substantive law. In the future, if a defendant perferred to create a settlement fund of the Feinberg-ian variety, they could do so and rest "easy" that the causation requirement of the substantive law remains as it always was. (Whether the requirement of specific causation is the best requirement from a normative point of view in mass tort litigation I leave to another day - AL)."

read more at link above
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Supreme Court won’t interrupt Texas voter ID law : SCOTUSblog

Federal District Court Judge Nelva G. Ramos, in a comprehensive opinion, found that the burdens of getting a photo ID as required by Texas law violated not only equal protection under the 14th but also the 24th Amendment to the Constitution which bans poll taxes. The court held that "every form of SB 14-qualified ID available to the general public is issued at a cost".The Texas Legislature, motivated by fears of the emerging minority vote, intentionally sought to reduce their votes.  The Fifth Circuit - probably the most conservative in the country - stayed the District Court's injunction against the Texas voter ID law.  Today the U.S. Supreme Court over dissent let the Circuit stay stand.  - gwc

The Supreme Court won’t interrupt Texas voter ID law : SCOTUSblog

by Lyle Denniston

 "The Court won’t interrupt Texas voter ID law
In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study. [Order and dissent]

 This apparently was the first time since 1982 that the Court has allowed a law restricting voters’ rights to be enforced after a federal court had ruled it to be unconstitutional because it intentionally discriminated against minorities.   A U.S. District Court judge in Corpus Christi struck down the ID law last week after a nine-day trial, but it now awaits review by the U.S. Court of Appeals for the Fifth Circuit, which temporarily blocked the trial judge’s ruling.

 The Justice Department has indicated that the case is likely to return to the Supreme Court after the appeals court rules.  Neither the Fifth Circuit’s action so far nor the Supreme Court’s Saturday order dealt with the issue of the law’s constitutionality.  The ultimate validity of the law, described by Saturday’s dissenters as “the strictest regime in the country,” probably depends upon Supreme Court review.


The Saturday order, for which a number of news organizations had kept a vigil through the night in anticipation of its release, did not disclose how six of the Justices had voted.

But, because it would have taken the votes of at least five to have reached the result, it was clear that the order had majority support.   The majority gave no explanation for its action.

Justice Ruth Bader Ginsburg wrote a dissenting opinion of more than six pages, joined by Justices Elena Kagan and Sonia Sotomayor.



The opinion, though written mostly in even tones, in substance was quite critical of the law, of Texas’s handling of the controversy over the law and its history of racial discrimination, and of the Fifth Circuit for clearing the way for the law to be used.

Much of the Ginsburg opinion closely tracked the arguments that the Corpus Christi judge had enlisted in finding the law to be the result of intentional discrimination, a violation of the Voting Rights Act of 1965, and an unconstitutional poll tax in violation of the Twenty-Fourth Amendment because of the fees required to get a valid ID.

 “The greatest threat to public confidence in elections in this case,” Ginsburg wrote, “is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”"...........

keep reading at link above



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IBM investigation: leaked BP settlement docs

http://louisianarecord.com/news/264034-ibm-report-independent-journalist-covering-bp-case-investigated-over-leaked-emails

O'Reilly admits he's obnoxious

http://www.salon.com/2014/10/17/bill_oreilly_finally_admits_it_im_really_obnoxious/?utm_source=twitter&utm_medium=socialflow

Juneau: BP not 'candid' in attempt to oust him

Juneau: BP not 'candid' in attempt to oust him

NEW ORLEANS -- As claims administrator Patrick Juneau responded to BP's effort to oust him Wednesday, plaintiffs' lawyers rushed to his defense and questioned if BP was leveling "outrageous and unfounded accusations" against Juneau in hopes that Judge Carl Barbier would sanction BP and open new avenues for the oil giant to appeal.

BP CEO Bob Dudley has accused Juneau of "hijacking" and "willfully misinterpreting" the settlement. Last month BP filed a motion to have Juneau removed because he had a contract with the state of Louisiana advising the government about the claims payment process of Ken Feinberg, the man in charge of compensation before the 2012 court settlement.

Juneau said in a brief filed Wednesday that no fewer than six BP attorneys and executives knew about his role as a liaison for the state before the company asked the court to let Juneau serve as independent claims administrator. Juneau also said he told BP verbally about his role as an attorney for Louisiana and did not consider it a conflict of interest because it had nothing to do with the litigation between plaintiffs and BP or a separate suit filed by the state against the oil giant.

Juneau said BP was not being "fully candid with the court" and was wrong to say that he had served "as a lawyer in the matter in controversy."

"Louisiana's legal claims against BP, whenever filed, are irrelevant as to Mr. Juneau because Mr. Juneau played no role in preparing, filing, or litigating those claims for relief," Juneau's attorney wrote. "Mr. Juneau was hired to provide 'advice and counsel to the State . . . related to the claims process and allocation protocols utilized and developed by the Responsible Parties associated with and/or arising from the Deepwater Horizon Oil Spill,' and these services did 'not include litigation.'"

The attorneys representing the settlement class also filed briefs in court Wednesday saying BP's accusations against Juneau are so far out of bounds that they deserve sanctions, but quickly added, "To be clear, Class Counsel does not seek sanctions at this time."

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Bill O'Reilly Extended Interview - The Daily Show | Comedy Central

Exclusive - Bill O'Reilly Extended Interview - The Daily Show - Video Clip | Comedy Central

Another Levittowner - interviewed by Jon Stewart

"all I want from you is..I want you to admit that there is such a thing as "white privilege".

You grew up in Levittown - could Black people live there?





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Big Pharma - Unseemly Free Speech Champion //Balkinization

Balkinization: Big Pharma: the Unseemly First Amendment Champion, Part One"
by Jane Bambauer (University of Arizona Law School)
 The pharmaceutical industry is enjoying the sort of influence over First Amendment jurisprudence once reserved for the likes of Hustler Magazine. In Sorrell v. IMS, the Supreme Court protected the transfer and use of prescription data for pharmaceutical detailing (that is, the in-person sales pitches that pharmaceutical reps make to doctors.) 
A more significant free speech victory for Big Pharma was delivered by the Second Circuit in United States v. Caronia, which overturned the conviction of a pharmaceutical detailer for off-label marketing of a drug. Public health experts and constitutional law scholars are intensely critical of these developments, arguing that they are perversions of the First Amendment to favor large corporations at the expense of consumer protection. For reasons I sketch here, their reactions overstate the conflict between Big Pharma and public health and underestimate the First Amendment interests at stake."
*******
Placebo-controlled double-blind experiments might be an appropriate standard for a scientific journal, but those journals have the luxury of avoiding the constant stream of hard decisions that every doctor and consumer must make. At a critical point of deliberation, bad science on a drug’s risks and benefitscould be better than no science at all.


Moreover, the agencies also risk training the public to think that scientific conventions are tantamount to “truth” which is, ironically, antithetical to the scientific process. Science is messy, tentative, and error-prone. We can get a sense of this just by considering the (arbitrarily chosen) 5% standard for statistical significance. A result that is statistically significant at the 5% level deserves a lot of confidence when it is viewed alone. However, as soon as we pull together fifteen statistically significant findings, the chance that at least one of the findings is actually random noise exceeds 50%. If we pull together a hundred studies, which is often what our body of public health knowledge consists of, the chance that every statement is true falls to under 1%. Add to this the fact that most public health research cannot be replicated and we get a humbling picture. Even when evidence-based claims live up to the current standards of scientific rigor, we are fumbling in the dark. (I don’t mean to be too pessimistic here; observational studies and controlled experiments are the only thing that takes us from wrong to veryslightly less wrong, and that's a good thing.)


The FDA’s regulations rely on an assumption that less-than-rigorous scientific statements in favor of a drug’s adoption on balance not only alter doctor behavior, but also lead to patient harm. This assumption may be correct, but at present it lacks a basis in evidence. Profits and good advice are not always at odds. When they pull in the same direction, skepticism and regulation can get in the way of health improvements. For example, there are some drugs, such as tPA for the treatment of stroke, that are so effective that the lag among ER doctors to use it is simply tragic. The public health community has not been able to show that pharmaceutical detailing causes more harm than good, which is why the health-related justifications in Sorrell were unconvincing. In the absence of evidence that the free exchange of information causes harm, the FDA’s approach is in trouble. It flies in the teeth of the Brandeisian assumption that bad information is best countered by more information rather than censorship.


I suspect that, in the wake of Caronia, Sorrell, and other cases, courts will apply intermediate scrutiny to any restrictions on commercial speech that is not provably false. Courts will not defer to agencies on the definition of misleading, so if an agency regulates speech that is technically true but arguably misleading and distortive, it will have to come to court with evidence of the potential for both misinterpretation and consequent harm.

This shift will not be a welcome one to critics who think that the commercial speech doctrine waswrongheaded from the start. But these critics tend to undervalue consumer and listener interests in advertising, and to overlook other, better, alternatives for promoting good research. (To be continued in Part Two.)

Cancellation of High School Football Season Leads Sayreville to Ask What Happens Next - NYTimes.com

Friday night lights in New Jersey.  Sayreville  is a typical Jersey town that adores its football team, state champions the past three years.  White suburban Democrats in the main, (Black and Latin voters total about 23%) the town voted for Obama in 2008 and Christie in 2009.  Maybe they liked the tough guy style of the one time high school football player.  But Sayreville's celebration of machismo has been stopped as the ugly underside of bullying has been exposed.  - gwc

Cancellation of High School Football Season Leads Sayreville to Ask What Happens Next - NYTimes.com

by Harvey Araton

SAYREVILLE, N.J. — Late on a graying and increasingly gloomy Friday afternoon, with its vaunted football team shut down, shamed and soon to be scarred by the arrest of seven players ages 15 to 17 on sexual crime charges, the band played on.

The Sayreville War Memorial High School marching band, that is.

One staff member said it was just practice. The students went through their paces, as parents drove into the parking lot, mingled and snapped photos, as pizza boxes were stacked on a table with the dinner hour approaching.

“There’s still plenty of stuff for these kids to do,” a band supervisor said. “Jazz band, concerts — they’re not going to be left in the lurch because there’s no more football season.”

Continue reading the main story

RELATED COVERAGE

• High School Football Players Charged in N.J. Hazing Case OCT. 11, 2014

On a grassy patch near the empty stadium a few hundred yards away, a few football players tossed a ball around, trying to score them into nets the size of ice hockey goals. This improvised activity would have to do in place of the canceled homecoming game that night against Monroe and the rest of the season, which was called off last week by the district superintendent, Richard Labbe, after hazing accusations of a sexual nature surfaced.

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Medtronic faces bone-growth shareholder class action - Businessweek

Medtronic has stymied personal injury lawsuits arising from use of their discredited bone-growth product.  State tort claims have been ruled pre-empted because the product won FDA permission to market. -gwc

Medtronic faces class action by shareholders - Businessweek:

by Jim Spencer // Minneapolis Star-Tribune



 "Oct. 11--A federal judge in Minneapolis has pushed forward a lawsuit involving Medtronic Inc.'s problematic Infuse bone growth product that could complicate the company's controversial $43 billion acquisition of Covidien.

U.S. District Judge John Tunheim will let lawyers for Medtronic investors explore an alleged coverup of Infuse's bad side effects by Medtronic officials and doctors the company paid to do research. 

Off-label use of Infuse has allegedly injured thousands of patients.

Tunheim also said the plaintiffs in the investors' class action lawsuit could pursue a claim that former Medtronic CEO William Hawkins purposely made misstatements to stock analysts to hide the fact that the Food and Drug Administration had refused to approve the next iteration of Infuse, a product called Amplify. 

 Experts say the ability to examine Hawkins' alleged misstatements, along with alleged manipulation of scientific research to cover up Infuse problems, could produce damaging publicity as Medtronic tries to consummate an already contentious attempt to buy the Irish devicemaker Covidien. If the investors' case gets to a jury that believes company officials knew of Infuse's problem but tried to hide them, a legal shield Medtronic has used to avoid thousands of personal injury claims might also be pierced. 

 "A deep-down examination of their behavior as a company puts some real pressure on them to settle [the suit]," said David Prince, a product liability specialist at William Mitchell College of Law in St. Paul."

Pre-emption remains a source of bitter frustration to patients who are not allowed to question Medtronic about its role in their injuries, said Minneapolis lawyer Stuart Goldenberg, who represents hundreds of people allegedly hurt by Infuse.

"Ironically, while the injured victims fight to even have the right to bring a lawsuit," Goldenberg said, "Medtronic has paid prior settlements regarding the Infuse product to other shareholders, whistleblowers, the federal government. And now, even Humana [health insurance company] has filed a lawsuit to get back its medical costs."

Shareholders who sued Medtronic over Infuse in 2008 received an $85 million settlement in 2012. Medtronic admitted no wrongdoing.

The new shareholders case, brought in 2013 by the West Virginia Pipe Trades Health and Welfare Fund, the Hawaii state Employees' Retirement System, and Union Asset Management Holding AG, relies heavily on disclosures in a 2012 report by the U.S. Senate Finance Committee, a 2011 issue of the Spine Journal and a 2013 reinterpretation of Infuse research data by the Yale University Open Data Access Project.

All of these reviews showed that Infuse was no more reliable than other forms of treatment, despite research that claimed otherwise by doctors who had been paid millions by Medtronic. In addition, the Senate found that some studies had been selectively edited -- at times by Medtronic's marketing department -- to downplay problems.

"You're really building your case on the literature," said Fordham law professor George Conk, who wrote legal briefs in a high-profile product liability case involving the drug Vioxx.

Conk said the discovery of facts that Tunheim has allowed in the new shareholders' suit could put Medtronic "at very substantial risk."

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The Most Ambitious Environmental Lawsuit Ever - NYTimes.com

Bobby Jindal - the ambitious Governor of Louisiana - is a mortal enemy of a lawsuit designed to compel the oil and gas industry to repair the damage they have done. - gwc

The Most Ambitious Environmental Lawsuit Ever - NYTimes.com:

by Nathaniel Rich



" Louisiana, the most common way to visualize the state’s existential crisis is through the metaphor of football fields. The formulation, repeated in nearly every local newspaper article about the subject, goes like this: Each hour, Louisiana loses about a football field’s worth of land. Each day, the state loses nearly the accumulated acreage of every football stadium in the N.F.L. Were this rate of land loss applied to New York, Central Park would disappear in a month. Manhattan would vanish within a year and a half. The last of Brooklyn would dissolve four years later. New Yorkers would notice this kind of land loss. The world would notice this kind of land loss. But the hemorrhaging of Louisiana’s coastal wetlands has gone largely unremarked upon beyond state borders.

This is surprising, because the wetlands, apart from their unique ecological significance and astounding beauty, buffer the impact of hurricanes that threaten not just New Orleans but also the port of South Louisiana, the nation’s largest; just under 10 percent of the country’s oil reserves; a quarter of its natural-gas supply; a fifth of its oil-refining capacity; and the gateway to its internal waterway system. The attenuation of Louisiana, like any environmental disaster carried beyond a certain point, is a national-security threat.

Where does it go, this vanishing land? It sinks into the sea.

The Gulf of Mexico is encroaching northward, while the marshes are deteriorating from within, starved by a lack of river sediment and poisoned by seawater. Since 2011, the National Oceanic and Atmospheric Administration has delisted more than 30 place names from Plaquemines Parish alone. English Bay, Bay Jacquin, Cyprien Bay, Skipjack Bay and Bay Crapaud have merged like soap bubbles into a single amorphous body of water. The lowest section of the Mississippi River Delta looks like a maple leaf that has been devoured down to its veins by insects. The sea is rising along the southeast coast of Louisiana faster than it is anywhere else in the world."



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Effect of Medical Malpractice Reform on Emergency Room Treatment // NEJM

"Defensive medicine", like voter fraud, is an urban myth to which Republicans are particularly but not exclusively susceptible.  resident Obama has shown signs of the syndrome.  So what is the effect of `tort reform'?  Did it eliminate unnecessary defensive testing.  If there is such a thing legal reform should have proved its existence.  The result of VA funded systematic study? No effect.  - gwc
The Effect of Malpractice Reform on Emergency Department Care — NEJM
by Daniel Waxman, M.D., Ph.D., Michael D. Greenberg, J.D., Ph.D., et al.

BACKGROUNDMany believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending. Emergency physicians practice in an information-poor, resource-rich environment that may lend itself to costly defensive practice. Three states, Texas (in 2003), Georgia (in 2005), and South Carolina (in 2005), enacted legislation that changed the malpractice standard for emergency care to gross negligence. We investigated whether these substantial reforms changed practice.METHODSUsing a 5% random sample of Medicare fee-for-service beneficiaries, we identified all emergency department visits to hospitals in the three reform states and in neighboring (control) states from 1997 through 2011. Using a quasi-experimental design, we compared patient-level outcomes, before and after legislation, in reform states and control states. We controlled for characteristics of the patients, time-invariant hospital characteristics, and temporal trends. Outcomes were policy-attributable changes in the use of computed tomography (CT) or magnetic resonance imaging (MRI), per-visit emergency department charges, and the rate of hospital admissions.RESULTSFor eight of the nine state–outcome combinations tested, no policy-attributable reduction in the intensity of care was detected. We found no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction (95% confidence interval, 0.9 to 6.2) in per-visit emergency department charges.CONCLUSIONSLegislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates. (Funded by the Veterans Affairs Office of Academic Affiliations and others.)

Gulf Coast chambers right to fight BP's attempt to erode settlement: Editorial | NOLA.com

Gulf Coast chambers right to fight BP's attempt to erode settlement: Editorial | NOLA.com:

by the Editorial Board// The Times Picayune

"The oil that gushed into the Gulf of Mexico from BP's broken well for 87 days in 2010 did enormous damage to coastal businesses and residents. The chambers of commerce in the region understand that well, as do thousands of business owners in the communities they represent.

 Unfortunately, the U.S. Chamber of Commerce is clueless.

The national chamber filed a brief with the U.S. Supreme Court siding with BP, which is trying to renege on the terms in a 2012 court settlement for economic damages from the spill. The company is unhappy that claimants are not required to show a direct link to the spill for their losses.

 In response, the New Orleans, St. Bernard Parish and River Region chambers of commerce and four chambers in Alabama and Florida filed their own brief with the high court Oct. 6.

The Gulf Coast chambers pointed out that the settlement terms were "written in plain English" and vetted by BP and its lawyers. "The contract entered into by the most savvy of operators with eyes open, should be enforced as written and agreed to by the parties," the chambers said.

They are absolutely right.".....



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Philadelphia Teachers Hit by Latest Cuts - NYTimes.com

It has always disturbed me and I have never understood why so much of the electorate resents public school education spending.  `The teachers are resented (overpaid, unionized, can't fire the bad ones), the students (failing? their parents don't read to them at night).'  In Europe - where conservatives are doing what they can to impose austerity - it remains the case that teachers have much higher social status and better pay.  And they are doing at the things we say we value: education, opportunity, environmental efficiency, etc.  - gwc

Philadelphia Teachers Hit by Latest Cuts - NYTimes.com: 

by Motoko Rich

"PHILADELPHIA — Money is so short at Feltonville School of Arts and Sciences, a public middle school here, that a nurse works only three afternoons a week, leaving the principal to oversee the daily medication of 10 children, including a diabetic who needs insulin shots. On the third floor filled with 200 seventh and eighth graders, one of two restrooms remains locked because there are not enough hall monitors. And in a sixth-grade math class of 33 students with only 11 textbooks to go around, the teacher rations paper used to print out homework equations."

***


According to the Pennsylvania Budget and Policy Center, a nonprofit policy research group, Mr. Corbett has cut close to $1 billion from the state’s education budget. But an administration spokesman said that such an analysis counted some federal stimulus money and that state funding has increased since 2011.

“Is anything ever enough?” said Carolyn C. Dumaresq, acting secretary of education in Pennsylvania and an appointee of Mr. Corbett. “I really think $1.3 billion is a lot of money,” she said, referring to the state’s allocation to Philadelphia, a district of about 131,360 students and close to 60,800 incharter schools. As a former district superintendent, she said, “I could have always found more ways to spend more money, but at some point in time you have to balance that against the taxpayers’ ability to pay.”

In Philadelphia, students, who organized a walkout and demonstrations last week to protest the cancellation of their teachers’ contract, worry that soon no one will want to work in the district.

“I really hope that this type of thing doesn’t drive great teachers out of the city,” said Nikki Adeli, a senior at Science Leadership Academy, a magnet high school in central Philadelphia, who is also a youth commissioner to Mayor Michael A. Nutter.***

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Public Health in the Shadow of the First Amendment // Yale conference

So when is the advice a doctor gives constitutionally protected speech?  In Roe v. Wade it was protected by privacy.  Now laws have criminalized "gay conversion therapy".  Really?  If I believe that masturbation is sinful and I am obessed with pornography, especially gay porn, can I not seek help with controlling my obsession?  Should my confessions be protected by privacy law?  The psychotherapist's speech criminalized?  Or is it protected by the First Amendment? What about advertising?  The FDA was blocked by the 4th Circuit from compelling graphic advertising.  Are the words on packaging speech?  Well, yes, but they are also promotional conduct.  Does the conduct/speech dichotomy work? - gwc
Balkinization

by Jack Balkin

 This weekend the Yale Law School, Medical School and Public Health School will co-host a conference on Public Health in the Shadow of the First Amendment.  This week Balkinization will feature posts from several of the participants.  Here is the conference description:

Public Health in the Shadow of the First Amendment will bring together leading scholars, key policy makers, and top experts in law, public health and medicine.

This conference, the first of its kind, will investigate a broad range of complex constitutional issues raised at the intersection of medicine, public health, and the First Amendment.

The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion.

First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures.  For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.

 In addition, new and important questions about the limits of a legislature’s ability to mandate or forbid certain physician speech are emerging.  For example, should the First Amendment protect doctors from requirements that they provide patients with ultrasounds or medically unproven “information” in the abortion context, or mental health providers from restrictions on conducting reparative therapy for gay teens?

In cases such as these, courts and legislatures are also increasingly required to adjudicate questions of scientific merit.  Many recent examples suggest reason for concern about the results.

Neither courts nor scholars have developed a consistent and coherent approach to these different areas. Experts in First Amendment law are rarely in a position to fully articulate the health consequences of these cases, and health experts rarely have the literacy in free speech law required to navigate these issues.

This conference will investigate these enormously important issues, with panels on food and drug regulation, behavioral marketing in the context of obesity, tobacco, and food policy, the regulation of professional conduct, First Amendment theory, and the intersection between science and democracy."



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Bush and Public Health Emergency Preparedness

Bush and Public Health Emergency Preparedness:TPM

I'm an epidemiologist with Los Angeles County Public Health Department, and I worked there all through the Bush years, and have worked closely with CDC throughout my career.

I just want to inform your reporting on the trend of public health spending during those years. Bush sent a LOT of money to public health departments. A LOT. There was the push to vaccinate every person against smallpox (remember that?) and there were other foolish vaccination-type initiatives as well.

But most of the money they threw at us was bioterrorism money. And I do mean they threw it at us. We had so much bioterrorism money (BT) that most large health departments (which are largely local animals -- city-run or county-run) formed whole sections in their departments, fully staffed and rolling in money such that the staff couldn't even spend fast enough.

And this for a problem that didn't exist, of course. There was no bioterrorism. But we did use the money wisely, on emergency planning and resourcing. Every public health worker was trained in emergency management. Our public health lab was expanded and highly improved. And of course as you know, California has earthquakes, so we broadened the emergency management training protocols to include natural disasters, which are infinitely more likely than a massive bioterrorism attack, I'm sure every sane person would agree.

That massive public health response to the Bird Flu in 2009? That was due to the expansive program of emergency management across the US almost entirely funded by bioterrorism money. So ultimately the money didn't go to waste.

Unfortunately, much of the money for more routine public health measures was either cut or turned over to ideologues. I could enumerate the insanity, but it's not relevant here. I do give Bush credit, however, for saving millions of lives in Africa with his malaria and HIV initiatives there.

Of course, the severe recession and the sequester and all the rest put severe strain on local health departments these past years, as we all know. We are just now starting to recover the lost staff and the lost capability. I am, however, completely confident that our local health system is fully prepared in the event of an outbreak. Our ACD and public health nurses and investigators are first rate.

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Young Black Men Are 21 Times More Likely To Be Killed By Police

Young Black Men Are 21 Times More Likely To Be Killed By Police: "PROPUBLICAPublishedOCTOBER 10, 2014, 2:56 PM EDT



 Young black males in recent years were at a far greater risk of being shot dead by police than their white counterparts – 21 times greater i, according to a ProPublica analysis of federally collected data on fatal police shootings.


The 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.

One way of appreciating that stark disparity, ProPublica's analysis shows, is to calculate how many more whites over those three years would have had to have been killed for them to have been at equal risk. The number is jarring – 185, more than one per week."



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Parsing the New Internet Rules of China’s Supreme Court | China Copyright and Media

Rogier Creemers, Oxford Comparative Media Law scholar,  reports on the new regulations on online torts issued by China's Supreme People's Court. He has translated the Regulations and given us commentary.  - gwc

Parsing the New Internet Rules of China’s Supreme Court | China Copyright and Media: "Yesterday, the Supreme People’s Court issued a document with the – predictably convoluted – title “Supreme People’s Court Regulations concerning Some Questions of Applicable Law in Handing Civil Dispute Cases involving the Use of Information Networks to Harm Personal Rights and Interests”. This document provides instructions to People’s Courts on certain aspect of dealing with civil cases involving harm to personality rights, including the right to privacy, portrait rights and reputational rights. (Full disclosure, I was involved in an academic project that provided input into the drafting process). It has been drafted to supplement the broad language of Article 36 of the Tort Liability Law, which sets forth a basis of liability for the online infringement of citizens’ rights, and provides for basic remedial measures. The Article’s wording left many questions of procedure and substance unanswered, meaning that courts (which in China’s civil law-based system have considerably less leeway to interpret the law, and do not create binding precedents) often faced considerable difficulties in handling these cases.

So, what are the salient points?

Most of the provisions in the document relate to procedure, yet have important consequences for the potential liability of network service providers and a fortiori, Internet users. Article 3, for instance, indicates that if a plaintiff sues only an Internet user or a network service provider (rather than both), the defendant may request that the other party is added to the case as a joint defendant. In other words, defendants are incentivized to share the blame and, in case compensation is ordered, the costs. Internet service providers are also mandated to provide identity and contact details of Internet users posting unlawful information, and face punishment if they do not provide this (Article 4). So far, efforts to impose an online real-name registration system have only been moderately successful, but depending on the penalty companies might incur if they are not able to provide identity details to courts, that might just change a little. Yet the real-name requirement goes both ways, as Article 5 indicates that Internet service providers are exempt from liability if the plaintiff’s notification about the presence of harmful content does not include a full name and contact details, indication of the harmful information, and an explanation for why it might be harmful. Furthermore, plaintiffs who falsely indicate that certain information is unlawful, face tort liability themselves (Article 8).

One parti"



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FDA approves drug coated vascular device

http://www.medscape.com/viewarticle/833081?utm_source=twitterfeed&utm_medium=twitter

Alice decision a big reason for sharp fall in US patent litigation, says Mark Lemley - Blog - Intellectual Asset Management (IAM) - Maximising IP Value for Business

Alice decision a big reason for sharp fall in US patent litigation, says Mark Lemley - Blog - Intellectual Asset Management (IAM) - Maximising IP Value for Business: "esterday the legal analytics company Lex Machina released its latest analysis of US patent litigation. This revealed that the number of cases filed in September was down 40% year-on-year. As luck would have it, IAM has been in Silicon Valley this week and was able to catch up with Lex Machina founder Professor Mark Lemley at Stanford University Law School.

In the first of a two-part interview (part two will be published tomorrow) Lemley discusses the fall in US litigation cases and why he thinks the recent US Supreme Court decision in Alice v CLS may be a large part of the reason why it has happened. He also explains why the future is going to be much tougher for NPEs and looks at the relationship between the CAFC and the Supreme Court. 

What do you think are the reasons for the fall in litigation?

We’ve seen a number of changes coming together all at once in patent law. Maybe the most significant of those is the Supreme Court’s Alice decision which is, I think, having a real effect on both software and business method patents. We’ve seen in the wake of Alice 15 decisions in the federal courts involving software or business method patents – 13 of those have struck the patents down. The other two have said this is a motion to dismiss, come back on summary judgment. So I don’t think that no software patents will survive but I do think that a wide swathe of patents that were written in a period when we didn’t pay any attention to patentable subject matter are vulnerable. And if you combine that with a couple of other factors, like the increased willingness of courts to grant attorneys fees against plaintiffs if their cases are weak and the fact that it’s now a lot cheaper to go to the patent office and get IPR or covered business method review, I think a lot of the business model that was driving the growth in litigation which involved suing everybody in the industry with this very broad, general patent is just less attractive than it used to be.

When you saw the Alice decision did you expect this?"



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BP challenges 'gross negligence' ruling in oil spill | NOLA.com

BP challenges 'gross negligence' ruling in oil spill | NOLA.com:

by Jennifer Larino

 "BP has asked a federal judge to reconsider a ruling that the company acted recklessly leading up to the 2010 Gulf of Mexico oil spill. The British oil company faces as much as $18 billion in fines.

In a motion filed in U.S. District Court in New Orleans on Thursday (Oct. 2), BP said the findings were based on evidence that was supposed to be excluded from the trial. BP has asked for the ruling to be set aside.

"Findings and conclusions are based substantially on expert witness opinions that the court appropriately and expressly excluded from evidence at trial," BP Vice President Geoff Morrell said in a written statement. "Because those opinions were excluded by the court, they cannot support key aspects of the court's findings, which should therefore be set aside."

 U.S. District Judge Carl Barbier ruled Sept. 4 that BP acted with "profit-driven decisions" that amounted to "gross negligence" prior to the oil spill. The decision leaves the company open to possibly billions of dollars in additional fines under the Clean Water Act.

The April 2010 blow out of BP's Macondo well in the Gulf of Mexico destroyed the Deepwater Horizon drilling rig, killing 11 men and sparking the worst offshore oil disaster in U.S. history.

 BP immediately said it would appeal the decision. Thursday's filing is the company's first challenge of Barbier's ruling.

In its motion, BP said Barbier improperly relied on the opinion of an expert witness about the amount and impact of compressive forces on the cement production casing on the Macondo well."



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Federal Judge finds policing of Ferguson protests was unconstitutional.

Judge finds St. Louis policing of Ferguson protests was unconstitutional.: Slate

by Elliot Hannon

"A federal judge ruled on Monday that some of the tactics employed by the St. Louis County Police Department in Ferguson against demonstrators were unconstitutional. U.S. District Judge Catherine Perry issued a preliminary injunction ordering the county police force to stop its blanket use of the “keep-moving rule”—also known as the “five second rule”—that required protesters to continue moving during demonstrations or face arrest.

“Neither the public interest nor the interests of the [police] favor restricting the core constitutional rights of assembly and speech in the arbitrary and vague manner caused by the keep-moving rule,” the order reads.

 The complaint brought by the ACLU last month alleged the St. Louis county police force unlawfully restricted peaceful demonstrations in Ferguson. In a broad preliminary rebuke of the police department’s handling of demonstrations in the wake of the shooting of Michael Brown, Judge Perry found the logic of the “keep-moving” rule violated protesters right of assembly and the ad hoc enforcement violated their right to due process.

“The keep-moving policy – as it was applied to plaintiff and others – prohibited citizens from peacefully assembling on the public sidewalks.

Although the state has a valid interest in maintaining order on its streets and sidewalks and in preventing violence by crowds, this interest is not sufficient to apply such a blanket rule to people assembling peacefully,” the order said. “The rule provided no notice to citizens of what conduct was unlawful, and its enforcement was entirely arbitrary and left to the unfettered discretion of the officers on the street.”"



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