Monday, November 28, 2011

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."

Friday, November 25, 2011

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."

Thursday, November 24, 2011

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)

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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Wednesday, November 23, 2011

Financial Finger-Pointing Turns to Regulators -

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 -
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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Tuesday, November 22, 2011

Merck Agrees to Pay $950 Million in Vioxx Case -

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

Saturday, November 19, 2011

Pepper spraying sit-down protesters

There would be plenty of outrage if the police seen here were in China.  There would be high level statements from the Department of State and lamentations by Presidential candidates.  If it happened in Birmingham Alabama in 1963 there would have been national outrage. But this happened at the University of California - Davis and the reaction so far is minimal.  James Fallows has much more at The Atlantic.
42 USC 1983 was passed by the post-civil war Republican Congress to deal with conduct like this.  Fortunately it is still on the books. - GWC
Video is HERE

Asbestos collusion 'killed thousands' / Britain / Home - Morning Star

Asbestos collusion 'killed thousands' / Britain / Home - Morning Star:
by John Millington
Leading asbestos campaigner John Flanagan launched a stinging attack on ex-ministers, businesses and insurance firms which he accused of playing a part in the deaths of thousands of workers.
He said that big business had lobbied government to block new health and safety rules after World War II.
The insurance industry then covered up the dangers posed by the substance to workers to avoid having to pay out compensation.
Mr Flanagan of Merseyside Asbestos Victim Support Group told the Hazards conference at the Abbey Centre, London: "Big business sent private correspondence to government saying they don't think it would be a good idea to have face masks for ship workers.
"It took until 1963 before they were brought in, but as late as the 1970s, employers were still saying it was safe."

Friday, November 18, 2011

F.D.A. Revokes Approval of Avastin for Use as Breast Cancer Drug -

F.D.A. Revokes Approval of Avastin for Use as Breast Cancer Drug -
Dr. Hamburg’s decision, outlined in a 69-page memorandum, agrees with the unanimous recommendation made by an F.D.A. advisory committee in June, at the end of a two-day hearing at which some women taking the drug pleaded for its continued approval.
 "An initial clinical trial that was the basis for the provisional approval showed that Avastin, combined with the drug paclitaxel, which is also known by the brand name Taxol, delayed the progression of disease by about five and a half months, compared to use of paclitaxel alone.

But in subsequent studies, in which Avastin was combined with different chemotherapy drugs, tumor growth was delayed by one to three months. Avastin did not prolong lives at all, nor did it improve quality of life.

Many breast cancer specialists say that Avastin does appear to work very well for some patients, and some advocates have said the drug should be left on the market for the sake of those patients. But Dr. Hamburg said there was no way to determine in advance who those patients were, so many women would use the drug. “The evidence does not justify broad exposure to the risks of this drug,” she wrote."

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Thursday, November 17, 2011

Alabama Legislators Weighing Changes To State's Draconian Immigration Law | ThinkProgress

Alabama Legislators Weighing Changes To State's Draconian Immigration Law | ThinkProgress:
by Amanda Peterson Beadle
"The realities of how drastically HB 56, Alabama’s extremely harmful immigration law, harms the state economy and daily lives of state residents has become abundantly clear, with farmers watching crops rot because they do not have enough workers, children being bullied in school, and proof of citizenship being required for everything down to getting a library card."

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Wednesday, November 16, 2011

Big boost for health care : SCOTUSblog

Big boost for health care : SCOTUSblog:
by Lyle Denniston
"For the second time, a federal judge with undoubted credentials as a conservative jurist has concluded that Congress had ample authority to enact the new federal health care law, giving the Obama Administration a new and significant victory just as the Supreme Court is about to take up the constitutional controversy. Senior U.S. Circuit Judge Laurence H. Silberman of the D.C. Circuit Court, who is among the most conservative of all federal judges, expressed some misgivings on Tuesday about the breadth of the key part of the new law, but nevertheless took only 13 pages of brisk argument to declare that provision to be constitutional."

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F.D.A. Is Urged to Issue More Alerts About Drug Risks -

by Bruce Japsen

"The process of posting potential safety signals began in the first quarter of 2008 as a result of legislation signed into law the previous year by President George W. Bush. The law, known as the Food and Drug Administration Amendments Act, directed the agency to conduct regular screenings of its adverse event reporting database and post quarterly reports online. The legislation was passed in the wake of several high-profile drug scandals, including the increased risks of heart attacks among those taking Vioxx, the painkiller that ultimately was withdrawn from the market.

Dr. Sidney Wolfe. director of health research at the Washington nonprofit group Public Citizen who also sits on a drug safety advisory committee to the F.D.A., said: “For most, if not all, of these drugs, alternative (usually older) drugs with comparable efficacy and more established safety records can be found.”

F.D.A. Is Urged to Issue More Alerts About Drug Risks -

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Monday, November 14, 2011

Court sets 5 1/2-hour hearing on health care (FINAL) : SCOTUSblog

Lyle Denniston of Scotus Blog summarizes the Supreme Court's grant of certiorari in the challenges to the Affordable Care Act.

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More Accusations Surface Involving Penn State Coach -

More Accusations Surface Involving Penn State Coach - "In a phone interview with Bob Costas that was broadcast Monday night on the NBC news program “Rock Center,” Sandusky said he was innocent of the charges against him and declared that he was not a pedophile. He did acknowledge, “I shouldn’t have showered with those kids.”

“I could say that I have done some of those things,” he said of the accusations against him. “I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their legs without intent of sexual contact.”"

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Paralyzed Fordham Student Sues School After Drunken Fall: Gothamist

Christie slams N.J. Supreme Court for fast-tracking challenge to judges' health-benefits law |

The New Jersey Supreme Court agreed to hear directly (without waiting for the Appellate Division to rule) the State's appeal from the order of Superior Court Judge Linda Feinberg. She held that the state's constitution bars recent legislation which increases Judges' contributions to pension and health & welfare funds.
Christie slams N.J. Supreme Court for fast-tracking challenge to judges' health-benefits law |

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Jack Raykovitz, Chief of Second Mile, Resigns Amid Penn State Scandal -

Jack Raykovitz, Chief of Second Mile, Resigns Amid Penn State Scandal - "STATE COLLEGE, Pa. — Jack Raykovitz, the chief executive of the Second Mile foundation for 28 years, has resigned amid a sexual abuse scandal involving the charity’s founder, the former Penn State assistant football coach Jerry Sandusky."

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Sunday, November 13, 2011

Is Penn State Liable for the Harm Done to Child Sex Abuse Victims?

Penn State - Nittany Lion shrine

Penn State's acting President Rodney Erickson has declared his regret to the eight or more victims of the alleged child sex abuse and the leadership's determination to restore the University's honor in the wake of the unfolding sex abuse scandal at its legendary football program. But it will be a long time before 108,000 fans at the stadium can again repeat with full-throated confidence the trademark call and response - WE ARE...PENN STATE".

 The tragedy at Penn State has garnered great attention - particularly the university's apparent failure to act effectively to protect young children from Jerry Sandusky - a retired coach alleged to have sexually abused eight boys, some of which acts occurred at the University's football training facility.    As I commented the day the Grand Jury's presentment was released it moved me personally because Joe Paterno has been an icon for me and other graduates of my (late, great) Jesuit high school Brooklyn Prep of whose alumni Paterno was among the most illustrious.

 Maxwell Kennerly of the Beasley law firm has prepared a good preliminary discussion of the tort liability issues: Can Sandusky's Childhood Sexual Abuse Victims Sue Penn State? Molestation Lawsuit Information

 NPR has prepared a Guide to principals and timeline

 Those whose acts are most likely to give rise to liability are McQueary and others on the coaching staff, the Athletic Department Director, and the university Vice President for Business. The latter two have been indicted for failure to report the alleged sexual assault to the campus or the state police and for perjury before the grand jury.

Among the issues are those of the credibility of an accuser - Michael McQueary (did he detail to university officials - including Paterno and V.P. Schultz that he actually saw the rape of a 10 year old boy by Sandusky or was his report ambiguous? Did McQueary meet his legal obligation but not his moral obligation, as Gov. Tom Corbett asserted on Meet the press today? That question is equally apt for head coach Joe Paterno.

A major obstacle to university liability may be sovereign immunity. Is the Pennsylvania State University a state agency? The Commonwealth Court has held in Doughty v. City of Philadelphia and Temple University that Temple - a Commonwealth University - is not a state agency. Penn State - a land-grant university - may have the benefit of sovereign immunity as do the colleges in the Pennsylvania State System of Higher Education. In McNichols v. Dept. of Transportation (2002) the immunity doctrine was affirmed by the Commonwealth Court.
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Saturday, November 12, 2011

Fuel Fix » Lawmaker calls on BP to pay oilfield supply workers hurt by drilling ban

Fuel Fix » Lawmaker calls on BP to pay oilfield supply workers hurt by drilling ban: "BP should compensate thousands of oilfield service companies and workers who lost business and wages after last year’s oil spill and a resulting moratorium on deep-water exploration, a Louisiana lawmaker said.

Rep. Jeff Landry, R-La., called on the British oil giant to compensate the workers and businesses, who currently are in a kind of legal limbo — ineligible both for payments under the Gulf Coast Claims Facility administered by Kenneth Feinberg and from a now-shuttered $100 million fund BP established for oil rig workers hurt by the spill."

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Monday, November 7, 2011

Medical malpractice reform efforts stalled - Brett Norman -

Medical malpractice reform efforts stalled - Brett Norman - "By BRETT NORMAN | 11/7/11 10:29 PM EST

In a bid to win support for health reform from skeptical doctors back in 2009, President Barack Obama pledged action on an item near the top of their wish list — malpractice reform.

And he delivered an initial step: $25 million to test alternatives to the medical liability system. That won praise from the American Medical Association, among others. But since then, tort reform on the federal level has been put on ice, a victim of both tight money and bitter politics."

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Judge Blocks Graphic Cigarette Warnings -

Judge Blocks Graphic Cigarette Warnings - "WASHINGTON (Reuters) - A federal judge blocked a rule requiring tobacco companies to display graphic images on cigarette packs, such as a man exhaling cigarette smoke through a hole in his throat.
District Judge Richard Leon sided on Monday with tobacco companies and granted a temporary injunction, saying they would likely prevail in their lawsuit challenging the requirement as unconstitutional because it compels speech in violation of the First Amendment."  
Leon wrote:  "It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking – an objective wholly apart from disseminating purely factual and uncontroversial information."
The opinion and order staying enforcement of the Rule in R.J. Reynolds v. U.S. FDA is HERE.  

Floyd Abrams and Prof. Steve Shiffrin debate the issue on NPR HERE
h/t Drug and Device Law Blog

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Hip implant litigation grows

Richard Meadow of the
Lanier Law Firm

Ellen Relkin of
Weitz Luxenberg
Metal on metal - a grinding problem - has led to many complaints among those who have had the devices implanted.  Plaintiffs lawyers like Ellen Relkin and Richard Meadow (with whom I worked on the Vioxx litigation) are taking on a big fight against the medical device manufacturers who have implanted hundreds of thousands such devices in the hips of patients suffering from falls, or arthritis.  According to an October 31 report in the National Law Journal the litigation is just getting rolling. - GWC
On May 6, the U.S. Food & Drug Administration, which regulates ­medical devices, ordered 21 manufacturers of metal-on-metal hip implants to conduct surveillance on their products and to assess the safety of the devices. DePuy, based in Warsaw, Ind., initiated a voluntary recall of all its ASR devices after fresh data in the United Kingdom indicated that the rate of patients who had to return to surgery within five years — the revision rate — was 12 to 13 percent. That was much higher than the industry standard, according to the FDA. DePuy recalled two devices: The ASR XL acetabular hip system, introduced to the U.S. market in 2005, and the ASR hip-resurfacing system, which was not sold in the United States.
More than 2,200 cases involving the devices are pending in a federal multidistrict proceeding in Toledo, Ohio. Another 1,000 are pending in state courts in California and 160 in New Jersey's state courts. 

Sunday, November 6, 2011

Merger of Memphis and County School Districts Revives Challenges -

Joseph Clayton, 79, a member of the board doesn't think that racial trust has increased much in Memphis where Martin Luther King led his last campaign - and where he was murdered. But now the poor city will merge its schools with the middle class suburbs.
We'll follow Memphis next semester in Remedies. - GWC
Merger of Memphis and County School Districts Revives Challenges - "MEMPHIS — When thousands of white students abandoned the Memphis schools 38 years ago rather than attend classes with blacks under a desegregation plan fueled by busing, Joseph A. Clayton went with them. He quit his job as a public school principal to head an all-white private school and later won election to the board of the mostly white suburban district next door."

A bit of the background can be found HERE on Huffington Post

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