Tuesday, January 31, 2012

BP cannot hand share of clean-up costs to Halliburton, rules judge | Business | guardian.co.uk

BP cannot hand share of clean-up costs to Halliburton, rules judge | Business | guardian.co.uk: "BP will not be able to hand off a share of the $40bn (£25.3bn) in clean-up costs and economic losses from the Gulf of Mexico oil disaster to Halliburton, a judge in New Orleans has ruled.

The decision, from US district judge Carl Barbier who will hear the main case for damages against BP next month, quashes the oil company's hopes of collecting a share of the clean-up costs from Halliburton.

A White House investigation found Halliburton had used flawed cement in constructing the BP well, leading to the April 2010 blow-out which killed 11 men on the Deepwater Horizon oil rig and spewed 4.9m barrels of crude into the Gulf.

However, Barbier wrote in his decision that BP must indemnify Halliburton from damage claims under the terms of its drilling contract. Halliburton is still on the hook for fines, however.

"BP is required to indemnify Halliburton for third-party compensatory claims that arise from pollution or contamination that did not originate from the property or equipment of Halliburton located above the surface of the land or water, even if Halliburton's gross negligence caused the pollution," Barbier wrote"

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Sunday, January 29, 2012

Gulf shrimp harvest numbers are eagerly awaited | NOLA.com

Weighing shrimp
jumbo shrimp

It is hard to know how many fish there are in the sea.  That and the need to achieve early settlement have driven BP's claims man Kenneth Feinberg to double his offer to shrimpers: BP will pay four times the 2010 loss - not twice - as initially offered.  These preliminary numbers will have policy makers at BP's Gulf Coast Claims Facility scratching their heads - and fishermen and their their lawyers too.  Settle or litigate? This piece from the Times Picayune shows how tricky it is to get reliable estimates of the once and future catch. - GWC
Gulf shrimp harvest numbers are eagerly awaited | NOLA.com:
"Rarely has quantifying Louisiana's annual shrimp harvest generated as much interest as it has this year, as scientists, shrimpers and even the general public nervously await news of how many shrimp were pulled from coastal waters battered in recent years by drought,  and themassive BP oil spill.
The reality of the 2011 Gulf of Mexico shrimp season likely won't be known for several more months, but preliminary numbers compiled by the state for The Times-Picayune this month show the Louisiana brown shrimp season garnered about 35 percent more pounds of headless shrimp than any season since 2007.
Definitive numbers for the white shrimp harvest aren't yet available, but it appears that catch dropped."

Friday, January 27, 2012

Annotated State of the Union Speech - James Fallows - Politics - The Atlantic

Obama's hand - editing a draft.
Don't they know how to find the double-space key at the White House?

James Fallows is an excellent experienced analyst of Presidential rhetoric.  He was a speech-writer for Jimmy Carter, a much less satisfying job than writing for Barack Obama who actually closely edits his own speeches even when he doesn't write the draft himself. DON'T read the excerpt below.  Click on the link.  You will find that when you put the cursor over an underlined phrase Fallows' comments pop up. - GWC
Remarks of President Barack Obama—As Prepared for Delivery
State of the Union Address
"An America Built to Last"
Tuesday, January 24th, 2012
Washington, DC
As Prepared for Delivery -
Mr. Speaker, Mr. Vice President, members of Congress, distinguished guests, and fellow Americans:
Last month, I went to Andrews Air Force Base and welcomed home some of our last troops to serve in Iraq. Together, we offered a final, proud salute [1]to the colors under which more than a million of our fellow citizens fought—and several thousand gave their lives.
We gather tonight knowing that this generation of heroes [2]has made the United States safer and more respected around the world[3]. For the first time in nine years, there are no Americans fighting in Iraq. For the first time in two decades, Osama bin Laden[4] is not a threat to this country[5]. Most of al Qaeda's top lieutenants have been defeated. The Taliban's momentum has been broken, and some troops in Afghanistan have begun to come home.
These achievements are a testament to the courage, selflessness, and teamwork of America's Armed Forces.[6] At a time when too many of our institutions have let us down, they exceed all expectations. They're not consumed with personal ambition[7]. They don't obsess over their differences.[8] They focus on the mission at hand. They work together[9].
Imagine what we could accomplish if we followed their example[10]. Think about the America within our reach: A country that leads the world in educating its people. An America that attracts a new generation of high-tech manufacturing and high-paying jobs. A future where we're in control of our own energy, and our security and prosperity aren't so tied to unstable parts of the world. An economy built to last,[11]where hard work pays off, and responsibility is rewarded.
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Thursday, January 26, 2012

Legal aid units face more drastic cuts: WSJ Law Blog

There is not much left of the War on Poverty, is there?  The Legal Services Corporation is a surviving outgrowth of the Office of Economic Opportunity.  OEO was the executive branch arm of Pres. Johnson's War on Poverty, which was first led by the late Sargent Shriver.  Even more devastating than budget cuts is the fact that interest on lawyers trust accounts plummeted with the federal funds rate and the decline in housing sales.   That device provided a great deal of the funding for legal aid and defender services nationwide. - GWC
Legal Aid Groups Planning Major Layoffs in 2012 - Law Blog - WSJ

NJ Supreme Court Upholds Enhanced Fees in Rights Cases - Again Rejecting U.S. High Court Rule

Helen Hoens
Justice Helen Hoens
The New Jersey Supreme Court unanimously affirmed that courts may award enhanced fees for lawyers who on contingent fee contracts prevail in consumer protection and civil rights cases.
Justice Helen Hoens said the justices saw no reason to abandon the fee-shifting principles it established in Rendine v. Pantzer, 141 N.J. 292 (1995). The Court there rejected the U.S. Supreme Court's declaration in City of Burlington v. Dague, 505 U.S. 557 (1992) that in federal civil rights cases courts may not increase fees to reflect the risk of non-payment assumed by prevailing plaintiffs' lawyers. - GWC
Court Upholds Rendine Fee Shifting, Declining To Follow U.S. High Court:
by Michael Booth - NJ Law Journal

"The state Supreme Court on Wednesday reaffirmed its nearly two-decade-old commitment to a doctrine that permits trial judges to enhance counsel fees in cases that might never be filed if not for the ability to shift fees.

In a consolidated ruling in two cases, the unanimous Court overturned two appellate rulings that followed the U.S. Supreme Court's holding, in Perdue v. Kenny A ., 130 S.Ct. 1662 (2010), that trial judges may award fees only in rare and extraordinary circumstances.

Justice Helen Hoens said the justices saw no reason to abandon the fee-shifting principles it established in Rendine v. Pantzer, 141 N.J. 292 (1995).

In one of the cases, Walker v. Guiffre, A-72-10, the Court reinstates a $99,000 legal fee on the plaintiff's $650 recovery in a suit accusing Route 22 Nissan Inc. and other car dealerships of fraudulently inflating fees in sales contracts."

In  Humphries v. Powder Mill Shopping Plaza, A-100-10, a wheelchair-bound woman alleged disability discrimination at the Powder Mill Shopping Plaza in Morris Plains. Bobbie Humphries alleged the parking lot did not have enough handicap parking spaces, with some located on a lower level accessible only by stairs or a ramp with a dangerously steep incline.  A settlement was reached which improved the access ramps and  paid nominal compensation to the plaintiff.  Attorneys fees of $97,000 were awarded by the trial court, a sum set aside by the Appellate Division.  Edward Kopelson, the plaintiff's lawyer,  should now get those fees and an award for his successful efforts on appeal.

The opinion is posted HERE.
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Sunday, January 22, 2012

Judge Jed Rakoff on free love, the death penalty, defending crooks and Wall Street justice - The Washington Post

Judge Jed Rakoff on free love, the death penalty, defending crooks and Wall Street justice - The Washington Post: "By David S. Hilzenrath, Published: January 20

From a courtroom in Manhattan, not far from the epicenter of the nation’s financial crisis, a longtime federal judge is becoming a hero to many and a nightmare to some for demanding greater accountability in cases of alleged Wall Street fraud.

Jed S. Rakoff is driving regulators nuts by refusing to rubber-stamp the kind of deals that have long defined Securities and Exchange Commission justice — boilerplate settlements in which companies use shareholders’ money to pay fines while they neither admit nor deny doing anything wrong. The latest example called for Citigroup to pay $285 million for alleged misconduct during the mortgage meltdown."

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Wednesday, January 18, 2012

Attorney General reverses course, supports holding back percentage of BP settlements | NOLA.com

Louisiana A.G. Buddy Caldwell
Attorney General reverses course, supports holding back percentage of BP settlements | NOLA.com: "Reversing his position without explanation, Louisiana Attorney General Buddy Caldwell said Tuesday he would support holding back 4 percent of state financial recoveries from the Gulf of Mexico oil disaster to fund the work of the committee of plaintiff attorneys at the helm of the litigation.
File photoAttorney General Buddy CaldwellCaldwell will also assume a new higher-profile role in the consolidated litigation over the oil spill, and will join Alabama Attorney General Luther Strange as co-coordinating counsel for state interests.The news came in a court filing Tuesday afternoon that also withdraws an earlier objection Caldwell had filed with the U.S. Fifth Circuit Court of Appeals over the 4 percent withholding issue."
Meanwhile the Southeast Texas Record reports that Alabama A.G. Luther Strange who supported the hold back has shifted his position in light of the objection filed by the United States Department of Justice.  Strange reportedly now calls for Judge Barbier to reconsider.

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Tuesday, January 17, 2012

Concurring Opinions » Walker v. City of Birmingham

Concurring Opinions » Walker v. City of Birmingham:
by Prof.Dave Hoffman/Temple
"On tap today in civil procedure: the dispiriting Walker case, in which Justice Stewart holds that the collateral bar rule trumps the First Amendment. It’s a terrific case to teach early in the semester, and scheduling it immediately after MLK Monday can be especially gripping. In Duncan Kennedy’s framing (from The Reproduction of Hierarchy), Walker is a hot, hot case, which makes students quite angry, but leaves them ultimately unsure on how to channel that anger in a legally appropriate manner. Shouldn’t MLK and the ministers have petitioned the court even though it was futile? Isn’t Justice Stewart sort of right that such general rules can’t abide small exceptions, lest we fail to “pay for the civilizing hand of law”? Surely there’s an argument that courts, who lack armies, require special solicitude which the executive and legislative branches don’t."

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ImmigrationProf Blog: Catholic Bishops Urge Activism on Immigration at State and Federal Levels

ImmigrationProf Blog: Catholic Bishops Urge Activism on Immigration at State and Federal Levels: "Catholics should be politically active at both the local and national level to promote a humane reform of immigration law is the message coming out of a conference in Salt Lake City sponsored by the U.S. Conference of Catholic Bishops and the Catholic Legal Immigration Network.
"The USCCB doesn't support any state immigration accord, though the dioceses and the state Catholic bishops conferences have done so," Kevin Appleby, director of migration policy and public affairs for the USCCB, told Efe from the Utah capital.
"At the same time, we believe that those accords are useful tools to defend immigrants' rights and to change the characteristics of the immigration debate," he said.
The 300 or so Catholic prelates and activists meeting this week in Salt Lake City are analyzing harsh anti-immigration measures enacted by states such as Arizona and Alabama.
Also on the agenda is a review of the impact on immigrant communities of programs such as Secure Communities, under which state and local law enforcement agencies are required to cooperate with federal immigration authorities."

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ImmigrationProf Blog: South Carolina Lawsuit on Hold, Awaits Outcome in Arizona v. United States

ImmigrationProf Blog: South Carolina Lawsuit on Hold, Awaits Outcome in Arizona v. United States: "A federal district court has stayed the proceedings in the U.S. government's challenge to the South Carolina immigration enforcement law. In December, the court enjoined several key provisions of the law. The case will await the Supreme Court's decision in Arizona v. United States. The court of appeals has denied efforts to delay the resolution of the appeals in the cases challenging the Georgia and Alabama immigration enforcement laws."

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Monday, January 16, 2012

Letter From Birmingham City Jail (Excerpts) by Martin Luther King, Jr.

In April 1963, jailed for marching without a permit in Birmingham, Alabama, Martin Luther King penned this open letter to clergymen of Birmingham who had urged him to go slow. The conviction was upheld by the Supreme Court (the law must be obeyed) but the letter was a turning point in the civil rights movement. Four months later the famous I Have a Dream speech was delivered.

The open letter begins:
My Dear Fellow Clergymen,
While confined here in the Birmingham City Jail, I came across your recent statement calling our present activities "unwise and untimely." Seldom, if ever, do I pause to answer criticism of my work and ideas … But since I feel that you are men of genuine good will and your criticisms are sincerely set forth, I would like to answer your statement in what I hope will be patient and reasonable terms.
I think I should give the reason for my being in Birmingham, since you have been influenced by the argument of "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every Southern state with headquarters in Atlanta, Georgia. We have some 85 affiliate organizations all across the South … Several months ago our local affiliate here in Birmingham invited us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented.
In any nonviolent campaign there are four basic steps: 1) collection of the facts to determine whether injustices are alive; 2) negotiation; 3) self-purification; and 4) direct action. We have gone through all of these steps in Birmingham … Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of police brutality is known in every section of the country. Its unjust treatment of Negroes in the courts is a notorious reality. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any city in this nation. These are the hard, brutal, and unbelievable facts. On the basis of these conditions Negro leaders sought to negotiate with the city fathers. But the political leaders consistently refused to engage in good faith negotiation.
Letter From Birmingham City Jail (Excerpts) by Martin Luther King, Jr.:

While everyone now nods reverentially, Rick Perlstein reminds us  that it was not always so.  Barry Goldwater sparked the new conservative movement when he voted against the civil rights act of 1964 (something Ron and Rand Paul defend still); William Buckley, Ronald Reagan and others denounced King for lawlessness.
In fact, though he is saint now - white people didn't like him much back in the day, as John Sides points out at The Monkey Cage.

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Saturday, January 14, 2012

Holdback order in BP oil spill case challenged

Holdback order in BP oil spill case challenged: "NEW YORK, Jan 13 (Reuters) - In a flurry of court filings this week, lawyers for claimants before the $20 billion BP oil spill fund asked a federal judge to reconsider his December order requiring that six percent of future settlements be placed in a reserve account.

U.S. District Court judge Carl Barbier in New Orleans established the account on Dec. 28 to potentially reward lawyers leading the BP multi-district litigation spawned by the Deepwater Horizon rig explosion in 2010. Barbier said he had not decided to award the fees, but he wanted to have the option if he decided they were deserved. On Jan. 4, Barbier amended his order to clarify the order would only affect claimants who hadn't received a determination letter from the BP fund as of Dec. 31."

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Thursday, January 12, 2012

New Jersey Trade Secrets Act Becomes Law : IP Law Alert

NJ Statehouse
New Jersey Trade Secrets Act Becomes Law : IP Law Alert:
by Gibbons, PC
"Yesterday, [January 9, 2012] Governor Chris Christie signed into law the New Jersey Trade Secrets Act, A-921/S-2456 providing state law protection against trade secret misappropriation. Prior to enactment, New Jersey was one of only four states (including New York, Massachusetts and Texas) that had not adopted some form of the Uniform Trade Secrets Act.

This important New Jersey law development takes immediate effect. In sum, trade secrets can be used to protect a company’s know-how and other proprietary information."

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Monday, January 9, 2012

Nice guy: BP Makes Amends - NYTimes.com

BP - nice guys, says Joe Nocera.
Plaintiffs' lawyers - greedy says Nocera, who objects to their getting paid.
BP Makes Amends - NYTimes.com:
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Saturday, January 7, 2012

Aliens denied equal access to health benefits: Mass. Supreme Court

In Finch v. Commonwealth Health Insurance the Massachusetts Supreme Judicial Court voided a statute denying access to `Romneycare' by legal aliens in the U.S. less than five years.  The Court found that the equal protection clause of the 14th Amendment barred the cost-saving limitation.  Perhaps 30,000 people were deprived of health care access by the measure.
Northeastern Law School Prof. Wendy Parmet represented the plaintiffs.  Northeastern is today's People's Electric Law School, as we used to call Rugers-Newark.  Kevin Johnson at Immigration Prof Blog has the story.

OTHERWISE: Postpone mandate test, Court urged : SCOTUSblog

The Affordable Care Act challenges should be dismissed.  That is the view of the court-appointed attorney asked to address the standing issue in the 26 state effort to enjoin the individual mandate provision of the affordable care at.  The Anti-Injunction act bars the claims as premature.  The Act takes effect in 2014.  Until one has paid the tax the claims are said to be premature, the court-appointed amicus argues in his  brief.
Postpone mandate test, Court urged : SCOTUSblog:

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Friday, January 6, 2012

S.E.C. to Change Policy on Companies’ Admission of Guilt - NYTimes.com

This does not affect the stance the SEC takes in the Citigroup settlement that Judge Jed Rakoff rejected. But it seems fair to say that his pressure - in Citigroup and other cases - played a part in stiffening the SEC's stance on admissions of wrongdoing. - GWC
S.E.C. to Change Policy on Companies’ Admission of Guilt - NYTimes.com: "The Securities and Exchange Commission is making a major change in how it settles some securities fraud cases, telling companies that they will no longer be allowed to say they neither admit nor deny the commission’s civil charges when, at the same time, they admit to or have been convicted of criminal violations."

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Pfizer Must Pay $45 Million in Prempro Cases, Court Rules - Businessweek

Pfizer Must Pay $45 Million in Prempro Cases, Court Rules - Businessweek: "“There was sufficient evidence of gross negligence and willful and wanton misconduct to support imposition of punitive damages,” the panel said in its 46-page ruling in Barton’s case.

‘Extraordinary Victory’

The court noted that while Kendall’s punitive award was large, it “correlated with the enormity of the defendants’ wrongs, their clear liability and the devastating impact on the plaintiff,” according to the 53-page decision.

“This is an extraordinary victory for Mrs. Kendall,” Tobi Millrood, one of her lawyers, said in an e-mailed statement. “The appellate court didn’t mince words: Wyeth and Upjohn engaged in a pattern of misconduct that was not the result of mere accident or happenstance.”

The cases are Connie J. Barton v. Wyeth Pharmaceuticals Inc., 694 EDA 2010, Superior Court of Pennsylvania; Donna Kendall v. Wyeth Inc., 936 EDA 2010, Superior Court of Pennsylvania."

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Thursday, January 5, 2012

Kenneth Feinberg freezes payments from BP oil spill fund | NOLA.com

Fallout continues from MDL Judge Carl Barbier's order to deduct 6% of all settlements between BP and claimants  in the Gulf oil spill of 2010.  BP challenges the judge's jurisdiction to order a hold-back of funds paid to people who have not filed suit and have not benefited from the plaintiffs Steering Committee's work and investments in the cases.  As I discuss in a forthcoming piece in the Roger Williams Law Review there is a regulatory vacuum regarding administration of BP's mandatory compensation scheme under the Oil Pollution Act of 1990.  Judge Barbier citing the existence of a "putative class" of claimants has stepped boldly into that gap.  - GWC
Kenneth Feinberg freezes payments from BP oil spill fund | NOLA.com:
"The Gulf Coast Claims Facility has halted all payments for oil spill damage in the wake of a ruling by U.S. District Judge Carl Barbier last week that 6 percent of all settlements reached after Nov. 7 be set aside to finance the work of plaintiff attorneys in the oil spill litigation in New Orleans. The move means that thousands of people and businesses waiting to be compensated outside of court for harm they endured when the Deepwater Horizon oil rig exploded and sank in April 2010 will have to wait longer for their money.

Payments to about 9,000 people and businesses who have received final determination letters from the Gulf Coast Claims Facility, but have yet to sign the award, are now in play. Another 40,000 people and businesses have claims under review at the GCCF and could also be affected.
"While we seek clarification from the court, we will freeze all GCCF payments going forward," claims facility administrator Kenneth Feinberg said Tuesday. "Hopefully, this freeze will be of a very short duration.""
Goodwin Procter, attorneys for Feinberg and the GCCF have asked for clarification of how to comply with the ruling which is effective November 7.  At least some of those funds are no longer within the GCCF or BP's control.

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Wednesday, January 4, 2012

Robert L. Carter, Judge and Desegregation Strategist, Dies at 94 - NYTimes.com

 NAACP lawyers: Louis L. Redding, Robert L. Carter, Oliver W. Hill,
Thurgood Marshall and Spottswood W. Robinson II

Robert L. Carter, Judge and Desegregation Strategist, Dies at 94 - NYTimes.com: "Robert L. Carter, a former federal judge in New York who, as a lawyer, was a leading strategist and a persuasive voice in the legal assault on racial segregation in 20th-century America, died on Tuesday morning in Manhattan. He was 94.
The cause was complications of a stroke, said his son John W. Carter, a justice of the New York Supreme Court in the Bronx."

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Sunday, January 1, 2012

China Amends Law to Boost Occupational Illness Prevention, Control

China Amends Law to Boost Occupational Illness Prevention, Control:
"Upon the conclusion of a six-day bimonthly session on Saturday, China's top legislature adopted an amendment to the Law on Occupational Illness Prevention and Control in a bid to better protect worker's legal rights.

The amendment was added after the Standing Committee of the National People's Congress (NPC), the legislature, conducted a third reading of the draft, which had previously been read in June and October.

President Hu Jintao has issued an order to publicize the amendment, which will take effect from the day of its publication.

Occupational illness refers to those illnesses caused by contact with dust, radioactive materials or other poisonous, harmful elements during a worker's occupational activities with enterprises, public institutions and individual business units, according to the amended law.

The amended law highlights China's enhanced moves to simplify procedures to help those suffering from occupational illnesses and to protect worker's legal rights, as treatment for such illnesses has become a growing public concern."

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