Wicker: BP Settlement Adds Certainty to Oil Spill Recovery | HottyToddy.com

Wicker: BP Settlement Adds Certainty to Oil Spill Recovery | HottyToddy.com

The 2010 Deepwater Horizon disaster in the Gulf of Mexico was the worst oil spill in U.S. history. Five years later the legal claims against BP have made history, too, with the nation’s largest-ever environmental settlement.

The news is a major milestone for Mississippi. For the past five years, Gulf Coast states and the Department of Justice have sought compensation for the spill’s extensive environmental and economic damage. Earlier this month, they reached an agreement with BP over the remaining penalties that the oil company owes. The agreement includes the final figure for BP’s Clean Water Act fines – a critical piece of the RESTORE Act.

Reaping the Benefits of RESTORE

Giving states the authority and flexibility to prioritize their most urgent recovery projects after the oil spill is something I championed as a coauthor of the RESTORE Act. The law, passed by Congress in 2012, directs 80 percent of Clean Water Act fines to affected Gulf Coast states. Typically, the U.S. Treasury would reserve these fines for the cleanup of future oil spills. RESTORE ensures that the funds will go where they are needed most.

RESTORE also recognizes that recovery efforts should be comprehensive, allowing Gulf states to pursue both economic and environmental initiatives. It established the Gulf Coast Ecosystem Restoration Council to facilitate partnerships between states and the federal government, promoting the strategic collaboration we need to make the Coast whole again.

The recent court agreement puts Clean Water Act fines at $5.5 billion, giving states more certainty about available resources and the viability of their long-term restoration plans. Mississippi is set to receive $582 million, in addition to the $106 million in early RESTORE payments. These funds can be directed to environmental, economic, and research projects. RESTORE funds will also be used for Research Centers of Excellence in each Gulf state.

Closing a Difficult Chapter

Overall, Mississippi is expected to receive an additional $1.5 billion over the next 17 years, putting its total compensation at nearly $2.2 billion. Among these payments is $750 million in economic damages, which the state legislature will determine how to allocate.

As Mississippians well know, the consequences of the spill were felt far and wide, not only jeopardizing the health of marine ecosystems but also residents’ livelihoods. Misperceptions of tainted seafood and polluted beaches severely damaged tourism and small businesses. Although the full extent of the harm may not be known for years, the settlement helps close a difficult chapter and promises to strengthen our recovery efforts in substantial ways.

Restoring a U.S. Treasure

It is important to build on the progress we have made. Mississippi’s early restoration projects have focused on replenishing oyster harvests and reef habitats as well as advancing infrastructure improvements for recreational use. Funding through the National Fish and Wildlife Foundation has addressed critical conservation needs and invasive species management. Meanwhile, tourism, the seafood industry, and energy exploration are showing signs of rebound, helping restore a way of life for our coastal communities.

Continued cooperation, transparency, and accountability will be necessary as Mississippi puts its portion of the BP settlement money to good use. We have an opportunity to make the Coast better than ever. Vibrant fisheries, energy resources, and recreational fun make the Gulf one of America’s greatest treasures. Its success is a win for the entire nation.

Pope Francis: Speech at World Meeting of Popular Movements

Pope Francis: Speech at World Meeting of Popular Movements

"Time, my brothers and sisters, seems to be running out; we are not yet tearing one another apart, but we are tearing apart our common home. Today, the scientific community realizes what the poor have long told us: harm, perhaps irreversible harm, is being done to the ecosystem. The earth, entire peoples and individual persons are being brutally punished. And behind all this pain, death and destruction there is the stench of what Basil of Caesarea called “the dung of the devil”. An unfettered pursuit of money rules. The service of the common good is left behind. Once capital becomes an idol and guides people’s decisions, once greed for money presides over the entire socioeconomic system, it ruins society, it condemns and enslaves men and women, it destroys human fraternity, it sets people against one another and, as we clearly see, it even puts at risk our common home."

Clearing Ascertainability Hurdle Yields $30M Accord | New Jersey Law Journal

Clearing Ascertainability Hurdle Yields $30M Accord | New Jersey Law Journal

by Charles Toutant


A $30 million settlement by OSRAM Sylvania Inc. in a class action over automotive replacement headlamps shows the increased efforts class-action attorneys are making to meet the heightened ascertainability standard set by the U.S. Court of Appeals for the Third Circuit.

The first checks to class members were issued this week in the suit, which asserted that Sylvania's top-of-the-line SilverStar headlamps cost much more than standard bulbs but were falsely promoted as providing better visibility. In March, U.S. District Judge Madeline Cox Arleo of the District of New Jersey approved the settlement and a fee award of $10 million, which is to be drawn from the settlement fund. An objector, Clarence Morrison, appealed the judge's approval to the Third Circuit but withdrew his appeal June 3.

But class counsel faced a challenge in counting and identifying class members because Sylvania sells its products to retailers, not to consumers. According to Barry Eichen of Eichen, Crutchlow, Zaslow & McElroy in Edison, that problem made the suit vulnerable to a challenge under the Third Circuit's strict ascertainability standard, most recently expressed in an April decision in Byrd v. Aaron's Inc.

To identify persons who bought the SilverStar headlamps, class counsel served third-party subpoenas on seven retailers that represent the majority of the sales of the products. The retailers resisted production of data about their customers but ultimately agreed to turn over names that were obtained from loyalty-card programs and credit-card transactions, Eichen said. The seven retailers can't be identified because their cooperation was conditioned on confidentiality orders, Eichen said. After spending months obtaining the data and analyzing it, class counsel ended up with a list of nearly 1.7 million names, he said.

Eichen represented the class along with Evan Rosenberg of his firm and John Keefe Jr., Stephen Sullivan Jr. and Paul DiGiorgio of Keefe Bartels in Red Bank.

The settlement will also be distributed through a more traditional claims process, in which the call for class members is published in major publications, in addition to the list of buyers obtained from the retailers, Keefe said.Read more: http://www.njlawjournal.com/id=1202731771061/Clearing-Ascertainability-Hurdle-Yields-30M-Accord#ixzz3fQt1yw1W

FDA strengthens warning that non-aspirin nonsteroidal anti-inflammatory drugs (NSAIDs) can cause heart attacks or strokes

Twenty different non-steroidal anti-inflammatory compounds are on the market.  Many are sold over the counter - e.g. Advil, Motrin, Feldene, Aleve.  Others are by prescription only.  The largest drug product liability settlement - the Vioxx cases against Merck - centered on a debate about the safety of its NSAID rofecoxib marketed as Vioxx compared to Naproxen -marketed as Aleve and Naprosyn.

Evidence developed by Merck showed that the rate of heart attacks was increased five-fold among certain patients taking Vioxx compared to those taken by the control group who took naproxen - a drug with a different biological mechanism.

During the litigation evidence began to emerge that the entire category of drugs presented cardiac risks.  Merck fought to blunt the dramatic evidence that differentiated their drug from others.

Now ten years after its first warnings the FDA has strengthened its class-wide warnings but refuses to distinguish among the various drugs, despite contrary evidence. This sort of debate demonstrates that the marketing consequences of FDA statements are great - and raises the question of what motivates the FDA  Advisory Committees and the agency itself when such prescriptive statements. are made by the federal watchdog.  - gwc

Drug Safety and Availability > FDA Drug Safety Communication: FDA strengthens warning that non-aspirin nonsteroidal anti-inflammatory drugs (NSAIDs) can cause heart attacks or strokes


July 9, 2015

The U.S. Food and Drug Administration (FDA) is strengthening an existing label warning that non-aspirin nonsteroidal anti-inflammatory drugs (NSAIDs) increase the chance of a heart attack or stroke. Based on our comprehensive review of new safety information, we are requiring updates to the drug labels of all prescription NSAIDs. As is the case with current prescription NSAID labels, the Drug Facts labels of over-the-counter (OTC) non-aspirin NSAIDs already contain information on heart attack and stroke risk. We will also request updates to the OTC non-aspirin NSAID Drug Facts labels.

Patients taking NSAIDs should seek medical attention immediately if they experience symptoms such as chest pain, shortness of breath or trouble breathing, weakness in one part or side of their body, or slurred speech.

NSAIDs are widely used to treat pain and fever from many different long- and short-term medical conditions such as arthritis, menstrual cramps, headaches, colds, and the flu. NSAIDs are available by prescription and OTC. Examples of NSAIDs include ibuprofen, naproxen, diclofenac, and celecoxib (see Table 1 for a list of NSAIDs).

The risk of heart attack and stroke with NSAIDs, either of which can lead to death, was first described in 2005 in the Boxed Warning and Warnings and Precautions sections of the prescription drug labels. Since then, we have reviewed a variety of new safety information on prescription and OTC NSAIDs, including observational studies,1 a large combined analysis of clinical trials, 2 and other scientific publications.1 These studies were also discussed at a joint meeting of the Arthritis Advisory Committee and Drug Safety and Risk Management Advisory Committee held on February 10-11, 2014.

Based on our review and the advisory committees’ recommendations, the prescription NSAID labels will be revised to reflect the following information:
The risk of heart attack or stroke can occur as early as the first weeks of using an NSAID. The risk may increase with longer use of the NSAID.
The risk appears greater at higher doses.
It was previously thought that all NSAIDs may have a similar risk. Newer information makes it less clear that the risk for heart attack or stroke is similar for all NSAIDs; however, this newer information is not sufficient for us to determine that the risk of any particular NSAID is definitely higher or lower than that of any other particular NSAID.

NSAIDs can increase the risk of heart attack or stroke in patients with or without heart disease or risk factors for heart disease. A large number of studies support this finding, with varying estimates of how much the risk is increased, depending on the drugs and the doses studied.

In general, patients with heart disease or risk factors for it have a greater likelihood of heart attack or stroke following NSAID use than patients without these risk factors because they have a higher risk at baseline.
Patients treated with NSAIDs following a first heart attack were more likely to die in the first year after the heart attack compared to patients who were not treated with NSAIDs after their first heart attack.
There is an increased risk of heart failure with NSAID use.

We will request similar updates to the existing heart attack and stroke risk information in the Drug Facts labels of OTC non-aspirin NSAIDs.

Furl the Confederate Flags - Walker v. Sons of Confederate Veterans -

The public display of the confederate battle flag on public property has a public meaning. It is time to end the use of the confederate battle flag as a public symbol.

On the morning after the Charleston Emanuel A.M.E. Church massacrethe Supreme Curt in Walker v. Texas Division of Sons of Confederate Veterans   held that Texas speaks when it allows a message on a license plate.  And it therefore can pick and choose what is said on them.  Surprisingly Texas did not allow the Confederate battle flag to be portrayed on the vanity plates sought by the Sons of Confederate Veterans.

The lineup was unusual: Justice Clarence Thomas joined the liberals while the other conservatives joined Samuel Alito in dissent. They argued that the more than 350 varieties of vanity plates in Texas, issued for purchase, are not likely to be understood as expressing the view of the State.  Rather the plates are seen as expressions of the vehicle owners.   Basically - it's a money-maker for the State and that settles it.  Thus picking and choosing among acceptable messages impinges the rights of free speech of those who buy the vanity plates.

The dissenters view is plausible.  The degree of control Texas has exercised is minimal.  But sometimes the narrow view is the wrong view.  So it is here.  One may choose to remember ancestors who fought for an unjust cause.  But the
public display of the confederate flag on public property has a public meaning.  The Confederacy was many things but its overwhelming historical importance is that it was a seditious rebellion whose principal object was to preserve chattel slavery.  The modern resurgence of the stars and bars battle flag was contemporaneous with  massive resistance to public school integration, and to the civil rights movement.  Its public meaning is inextricably linked to slavery and the racial segregation that followed and frustrated the implementation of the 14^th and 15^th Amendments.

The Walker opinion, fortuitously, could not have been more timely.
It is time to end the use of the confederate battle flag as a public symbol.

Withdraw Approval for Seprafilm - Public Citizen to FDA

Public Citizen to FDA: Withdraw Approval of Seprafilm and Initiate Mandatory Recall

Medical Device Not Shown to Be Safe and Effective; Associated With Patient Death and Injury

WASHINGTON, D.C. – The U.S. Food and Drug Administration (FDA) should remove the medical device Seprafilm from the market because it has not been shown to be safe and effective, and has been associated with patient death and severe injury, Public Citizen told the agency in a petition filed today.

Seprafilm – approved by the FDA in August 1996 – is a thin sheet of gel-like material that surgeons use during abdominal and pelvic surgery to prevent internal organs from forming fibrous bands of tissues that can block the intestine and cause other complications following surgery.

The clinical studies the FDA relied on when approving Seprafilm were plagued with problems. A study researcher at one hospital did not follow the study protocol or report all adverse event data and filed incomplete and inaccurate paperwork. There were also high numbers of serious adverse events in patients receiving Seprafilm. At the time of approval, the FDA ordered the product’s manufacturer, Genzyme, to conduct a post-approval safety study to address the agency’s concerns with the initial trials.

Yet this postmarket study, when finally completed, used highly questionable forms of analysis and failed to establish that Seprafilm offers any important clinical benefits for patients. More troublingly, evidence from this study, along with reports filed with the FDA over the years, shows that Seprafilm may interfere with wound healing and cause severe reactions – including death – in some patients.

“Seprafilm never should have been approved. There is no evidence that this device achieves any important clinical benefit for patients – but ample evidence showing serious adverse health consequences,” said Dr. Michael Carome, director of Public Citizen’s Health Research Group. “The FDA needs to immediately withdraw the approval of Seprafilm and initiate a mandatory recall of the device.”

Through records in the FDA’s Manufacturer and User Facility Device Experience database, Public Citizen found 21 reports of death in patients in whom Seprafilm was placed during surgery. It is likely that many other deaths have gone unreported. In addition to the death reports, Public Citizen identified a total of 524 reports of adverse events linked to Seprafilm.

`Something must be done about Prince Edward County' - Kristin Green // book review // NY Times

The myth that nothing need be done - other than that Black people stop their bad behaviour - grips the bulk of white America- and the United States Supreme Court.  Reminders of just what we did are needed - north and south. - gwc
‘Something Must Be Done About Prince Edward County,’ by Kristen Green - The New York Times
by Thomas Sugrue

On Sept. 10, 1959, black students in Prince Edward County, Va., watched as school buses full of white children rolled through the streets, delivering their charges to the newly opened Prince Edward Academy. To resist court-mandated desegregation, the local school board shuttered the public schools, but not before white volunteers stripped classrooms of desks, books, and supplies for the new academy. Local Jaycees ripped out the high school stadium’s goal posts and transplanted them to the white-only academy’s football field.

Kristen Green, who graduated from the Prince Edward Academy about three decades after it opened, returned to her hometown in 2006 to research the county’s controversial past. She blends history and memoir in a gripping narrative that revolves around her discovery that “Papa,” her beloved grandfather and a well-regarded local dentist, was a segregationist who played a key role in the decision to shut the public schools.

Today, the majority of students in Prince Edward’s public schools are black; but only 5 percent of the private academy’s are. Prince Edward County is no longer the backwater it was in 1959, but there is still little support for the public schools, little will to undo decades of unequal education. Separate and unequal has a new face in Prince Edward County today, with liberty and sovereignty for some.

SOMETHING MUST BE DONE ABOUT PRINCE EDWARD COUNTY

A Family, a Virginia Town, a Civil Rights Battle

By Kristen Green

Illustrated. 320 pp. Harper. $25.99.

Thomas J. Sugrue is a professor of history and social and cultural analysis at New York University and the author of “Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North.”

For whom do we speak? The Meaning of the Declaration of Independence

For whom do we speak is a question that judges, political leaders, each of us must answer.  Is it the Founders?  Posterity? The Nation?  Principle? Are we bound by the original meaning of laws?

President Barack Obama - Eulogy - Rev. Clementa Pinckney, College of Charleston, Emanuel A.M.E. Church, Charleston, S.C.  
Rev. Pinckney "embodied the idea that our Christian faith demands deeds and not just words; that the “sweet hour of prayer” actually lasts the whole week long -- (applause) -- that to put our faith in action is more than individual salvation, it's about our collective salvation; that to feed the hungry and clothe the naked and house the homeless is not just a call for isolated charity but the imperative of a just society."

Obama's Eulogy Finds its Place In History - Michiko Kakutani, NY Times

Justice Anthony Kennedy - Opinion of the Court - Obergefell v. Hodges
"The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow  persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex."

President Barack Obama, Remarks on the Supreme Court decision in Obergefell.  "...this ruling is a victory for America"

First Things Symposium - After Obergefell 
Robert George: "How shall we respond to a lawless decision in which the Supreme Court by the barest of majorities usurps authority vested by the Constitution in the people and their elected representatives? By letting Abraham Lincoln be our guide. Faced with the Supreme Court’s Dred Scott decision, Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. "

C.J. Taney in Dred Scott v. Sandford (1856)

"In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument....No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted."

Attorney General Lynch on the Agreement with BP to Settle Civil Claims for the Deepwater Horizon Oil Spill | OPA | Department of Justice

The Department of Justice and the Gulf Coast states announced agreement in principle with BP to settle claims for environmental damage, cleanup costs, and clean water act penalties.

The deal will be detailed in a consent decree and submitted for court approval after a public comment period. - gwc

Statement by Attorney General Loretta E. Lynch on the Agreement in Principle with BP to Settle Civil Claims for the Deepwater Horizon Oil Spill | OPA | Department of Justice

Statement by Attorney General Loretta E. Lynch on the Agreement in Principle with BP to Settle Civil Claims for the Deepwater Horizon Oil Spill

Total Value of Settlement Would Top $18.7 Billion, the Largest Settlement with a Single Entity in American History

Today, BP disclosed that it has reached agreements in principle with the United States, state, and local governments for a settlement of civil claims arising from the April 20, 2010, Deepwater Horizon oil spill in the Gulf of Mexico. The Attorney General made the following statement:

“Since the Deepwater Horizon oil spill – the largest environmental disaster in our nation’s history – the Justice Department has been fully committed to holding BP accountable, to achieving justice for the American people and to restoring the environment and the economy of the Gulf region at the expense of those responsible and not the American taxpayer. In December 2010, my predecessor, Attorney General Eric Holder, announced a civil lawsuit against BP and its co-defendants. Since that time, the Deepwater trial team has fought aggressively in federal court for an outcome that would achieve this mission, proving along the way that BP’s gross negligence resulted in the Deepwater disaster.
“Today, I am pleased to say that after productive discussions with BP over the previous several weeks, we have reached an agreement in principle that would justly and comprehensively address outstanding federal and state claims, including Clean Water Act civil penalties and natural resource damages. BP is also resolving significant economic claims with the impacted state and local governments. We will work diligently during the next several months to incorporate the agreement in principle into a consent decree, which would then undergo public comment before court approval. If approved by the court, this settlement would be the largest settlement with a single entity in American history; it would help repair the damage done to the Gulf economy, fisheries, wetlands and wildlife; and it would bring lasting benefits to the Gulf region for generations to come.

“I am so very grateful to the Deepwater civil trial team, made up of men and women from the department’s Environment and Natural Resources Division and Civil Division, as well as the incredible response, investigative and supporting efforts of the Departments of Homeland Security, Interior, Commerce and Agriculture and the Environmental Protection Agency, whose efforts have made this important step possible. I also appreciate the extraordinary effort of the many state leaders and environmental professionals who collaborated to advance this agreement in principle.”

What is a Legislature? Arizona Legislaturev. Arizona Independent RedistrictingCommission / Jack Balkin //Balkinization

In Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC) the United States Supreme Court - divided 5-4 - with Kennedy swinging to the "left" provoked the now familiar heated rhetoric.  This time it was Justice Roberts dishing out the ridicule.  The people of Arizona by referendum removed the Legislature's power to redistrict Congressional seats (constitutionally mandatory after each census).  They gave it to the Arizona Independent Redistricting Commission.  The Legislature cried foul.
The Constitution guarantees a republican - representative form of government to each state.  And the Elections Clause of Art. I, § 4, cl. 1, provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” 

Now Justice Ginsburg for the majority declared that in this case the people were the Legislature.  Oy vey said Roberts.  "What chumps" were the voters who transferred the power to elect Senators from the "Legislature" to the people.  They should just have done a "magic trick" like that performed by the majority.  Words mean what they choose them to mean, etc, etc.  All to get the desired result - presumably to get redistricting out of the hands of the Republican legislative majority, I suppose.  More dastardly liberal manipulation of language. etc. 

Now comes Yale's Jack Balkin with an offering that resolves the contradiction: the AIRC is a new, second Legislature.  Problem solved. - gwc
Balkinization: What is a Legislature?
Now suppose the state amends its constitution to create a second legislative body-- which it calls "Legislature 2". Its members are appointed for fixed terms by the leaders of the older legislature (Legislature 1). Its members, in turn, can also appoint one additional member to break ties. The constitution gives Legislature 2 the power to pass all laws involving redistricting without the possibility of veto by either the Governor or by Legislature 1. Legislature 1 still handles all other issues of election law.


Is Legislature 2 part of the legislative power of the state under the Elections Clause? It is not identical with the people of the state, and its membership is much smaller than the state’s voting population. It is indirectly representative because its members are appointed by members of Legislature 1, and it passes laws. It is not too much of a stretch to say that Legislature 2 is part of “the Legislature” of the state, along with Legislature 1.


In his dissent, Chief Justice Roberts emphasizes that the uses of the word “Legislature” in the rest of the Constitution generally refers to representative bodies, or indirectly representative bodies like the Senate before the 17th Amendment. Legislature 2 meets his objections. He also argues that the 17th Amendment distinguishes between the Legislature of the state and the people of the state. That is not a problem either: as just noted, Legislature 2 is not the same as the people of the state.

Now suppose the state passes a new constitutional amendment. This amendment renames Legislature 2 and calls it the Arizona Independent Redistricting Commission. Should the name matter at all from the standpoint of the Elections Clause?