BP Oil Spill - Vanderbilt Law Review

Rigs, Risk & Responsibility

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

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Judge Rakoff rejects SEC - Citigroup Settlement

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

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

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

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

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

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

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

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

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

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

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

by Prof. Rodger Citron

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

©iStockphoto.com/HPuschmann

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

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

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

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

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Financial Finger-Pointing Turns to Regulators - NYTimes.com

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

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

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

by Louise Story and Gretchen Morgenson

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

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

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Department of Justice Challenges Utah’s Immigration Law

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

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

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

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

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

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

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

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

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

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

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Lincoln, Slavery and the Kansas-Nebraska Act

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


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

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

Elizabeth Warren '76 remembers Rutgers Law years

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