Saturday, March 31, 2012

The Revenge of Wen Jiabao - By John Garnaut | Foreign Policy

Australian John Garnaut on the dethronement of Bo Xilai - the CP leader in Chongqing. - GWC
The Revenge of Wen Jiabao - By John Garnaut | Foreign Policy

"If Premier Wen Jiabao is "China's best actor," as his critics allege, he saved his finest performance for last. After three hours of eloquent and emotional answers in his final news conference at the National People's Congress annual meeting this month, Wen uttered his public political masterstroke, reopening debate on one of the most tumultuous events in the Chinese Communist Party's history and hammering the final nail in the coffin of his great rival, the now-deposed Chongqing Communist Party boss Bo Xilai. And in striking down Bo, Wen got his revenge on a family that had opposed him and his mentor countless times in the past."

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Friday, March 30, 2012

Give claimants in BP oil spill an option: An editorial |

Give claimants in BP oil spill an option: An editorial |
The Times Picayune - Editorial
 "The first report of payments issued by the incoming BP oil spill claims administrator showed that some payments have resumed, and that's the good news. In his first two weeks, attorney Patrick Juneau issued almost $27 million in payments to 1,096 claimants.
BP fund administrator Kenneth Feinberg, left, was officially replaced by Patrick Juneau.
The bad news is that most of the claimants -- 619 of them -- received only 60 percent of final offers made by previous administrator Kenneth Feinberg. They were not given the option of accepting the full offer from Mr. Feinberg.
Under a court settlement reached by plaintiff lawyers and BP, Mr. Juneau will make new offers to these claimants and to anyone else who had received a previous offer but had not accepted it before Feb. 26. The claimants will then be able to choose whether to receive the remaining 40 percent of what Mr. Feinberg offered or the new proposal under terms set by the court "

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Should the Saints Worry About Legal Trouble? - Jake Simpson - Entertainment - The Atlantic

Should the Saints Worry About Legal Trouble? - Jake Simpson - Entertainment - The Atlantic: "Last week, the NFL announced harsh penalties against the New Orleans Saints for their so-called "bounty program" organized by former defensive coordinator Gregg Williams, a system that provided cash incentives for injuring opposing players. The league suspended Williams, head coach Sean Payton, general manager Mickey Loomis, and an assistant coach for a year and docked the team $500,000 and two second-round draft picks.

The punishment, which some felt was hypocritically draconian, seemed to bring an end to the fallout from the bounty program. But plaintiffs' attorneys and at least one U.S. Senator may feel differently, opening the door for potential lawsuits against the team and its personnel.

"There's always the possibility of litigation," said Gabe Feldman, sports law professor at Tulane University Law School. "The real question is the likelihood of success.""

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Thursday, March 29, 2012

Conoco Settles Bohai Bay Oil Spill in China - Economic Observer News

 "Two months after it was announced that China's Ministry of Agriculture had reached an agreement with U.S. oil major ConocoPhillips and the China National Offshore Oil Corp. (CNOOC) in relation to compensation for the environmental damage caused by last year's Bohai Bay spill, the EO has learned more details of how the compensation scheme will operate.
According to the details of the package that was announced in late January, a total of RMB 1 billion yuan will be paid as compensation to settle public and private claims of potentially affected fishermen.
The EO has learned that Liaoning Province will receive more than 300 million yuan of the funds and that two counties in Hebei province – Laoting and Changli - will also receive more than 300 million yuan each."
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A Framework for Analyzing Attorney Liability Under Section 10(b) and Rule 10b-5 by Gary Bishop :: SSRN

Section 10(b) of the Securities Exchange Act of 1934 § 10(b), 15 U.S.C. § 78j(b) provides, in pertinent part that "It shall be unlawful for any person, directly or indirectly. . (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, . . any manipulative or deceptive device ."

In Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 177, 191 (1994) the Supreme Court rejected the notion of aiding and abetting liability in a private action under the federal securities laws.  Thus lawyers, accountants, banks, and mutual fund investment advisers are civilly liable under section only when their conduct satisfies the requirements for primary liability.  That is - just being a facilitator of a fraud, absent knowing participation in the fraud - will not be actionable under the Act.  But just where should the line be drawn? New England Law School law professor Gary Bishop argues that
“an interpretation of the liability standard under section 10(b) and Rule 10b-5 that requires an allegedly false or misleading statement to be attributed to the maker and that narrowly defines the maker of the statement as the person with ultimate authority over it is consistent with the deterrence of fraud and complete disclosure of information in the securities markets."

A Framework for Analyzing Attorney Liability Under Section 10(b) and Rule 10b-5 by Gary Bishop :: SSRN:
by Gary Bishop
This article analyzes recent developments in the law of secondary party liability under the general antifraud provision of the Securities Exchange Act of 1934, section 10(b), and its corresponding Securities and Exchange Commission rule, Rule 10b-5. The article focuses on a specific type of secondary party, securities lawyers, who make their living representing securities issuers and face a myriad of challenges in doing so. Among those challenges are defrauded investors seeking recovery of their losses from both the issuer of the failed investment securities and from the lawyers who represent the issuer. These securities fraud actions against lawyers raise serious questions about the proper scope of liability under the federal securities laws. The recent developments discussed in the article indicate that the standard for secondary party liability is increasingly becoming one that attorneys acting in the traditional role of adviser and draftsperson to securities issuers will not satisfy.

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Louisiana Oystermen Still Struggling Two Years After Oil Spill | USA | English

Louisiana Oystermen Still Struggling Two Years After Oil Spill | USA | English: "Almost two years ago an explosion on an offshore drilling rig killed 11 men and sent 4.9 million barrels of oil gushing into the Gulf of Mexico. The result was the worst environmental disaster in United States history.  Of all the local businesses affected by the spill, Louisiana's once-flourishing oyster industry is probably in the worst condition.  Oysters are still scarce and consumers are still afraid to eat them."
Video HERE
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Wednesday, March 28, 2012

Adrienne Rich - feminist poet - dies at 82

Adrienne Rich, Influential Feminist Poet, Dies at 82 -
"I am here, the mermaid whose dark hair
streams black, the merman in his armored body
We circle silently about the wreck
we dive into the hold. ...
We are, I am, you are
by cowardice or courage
the one who find our way
back to the scene
carrying a knife, a camera
a book of myths
in which
our names do not appear."

I used the phrase Diving Into the Wreck as the lead in the title of my recent article about the BP Gulf Oil Spill.  Although the exploration of the law of compensation has nothing to do with the exploration of identity that made Adrienne Rich's 1974 title poem so powerful, I used the phrase to pay tribute to her, the author of one of the most evocative poems I have ever read. - GWC

Monday, March 26, 2012

Goldman Sachs Denies Claims It Led to Copper River’s Demise -

Goldman Sachs Denies Claims It Led to Copper River’s Demise - Thor Swift
 "Just before the financial crisis began in September 2008, a prominent hedge fund appeared well positioned to take advantage of any turmoil in the markets. That fund, Copper River Partners, had made sizable bets months earlier against companies whose stocks it expected to suffer.
Marc Cohodes worked at his hedge fund for 25 years, and its short bets on the stock market in 2008 had seemed well positioned to profit.
Within weeks, however, Copper River, once a successful $1.5 billion hedge fund, was out of business, having unexpectedly absorbed losses on the very bets it thought would be profitable. While the market turmoil contributed to its problems, Marc Cohodes, head of Copper River, says that a significant force behind the failure was Goldman Sachs, which for years had been the firm’s broker."
Transcript of Depositions in Case

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How a short sale works


Great graphic from the Times

Sunday, March 25, 2012

Law School Debt Loads Overwhelm Many - Brian Tamanaha

by Brian Tamanaha
Thousands of 2011 law graduates across the country will not earn enough to manage the debt they incurred to obtain their law degree. 
The average indebtedness figures for 2011 law graduates are stunning. Last year, 4 law schools had graduates with average debt exceeding $135,000. This year 17 law schools are above $135,000. Last year the highest average debt among graduates was $145,621 (Cal. Western); this year the highest average debt is $165,178 (John Marshall). Below are the 20 schools with the highest average law school debt among graduates (these figures do not include undergraduate debt).
John Marshall Chicago $165,178
California Western $153,145
Thomas Jefferson $153,006
American $151,318
New York Law School $146,230
Phoenix $145,357
Southwestern $142,606
Catholic (DC) $142,222
Northwestern $139,101
Pace University $139,007
Whittier $138,961
Atlanta's John Marshall $138,819
Pacific (McGeorge) $138,267
St. Thomas (FL) $137,721
Univ. San Francisco $137,234
Vermont Law School $136,089
Golden Gate $135,645
Florida Coastal $134,355
Stetson $133,082
Syracuse $132,993
When will law schools decide that they cannot continue to inflict ever increasing levels of unmanageable debt on their students? At the very least, the admissions offices at law schools across the country should explicitly warn students that anyone who expects to incur law school debt above $100,000 will likely suffer financial distress upon graduation unless they land a NLJ 250 job or a public service job that qualifies for reduced loan payments--and admitted students should be told that relatively few graduates get these jobs. Unfortunately, we cannot count on law schools to provide this message--which, if effective, would result in some schools closing their doors for lack of enough paying students.  

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Republican AG's and Governors Flawed ACA Brief - CAP/Think Progress

The Center for American Progress - a Democratic think tank - asserts there are 3 False Claims in the Republican Attorney Generals and Governors  Anti-Health Care Reform Brief by former Solicitor General Paul Clement.
Paul Clement's Fake Constitution:

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Republican AG's and Governors Flawed ACA Brief - CAP/Think Progress

The Center for American Progress - a Democratic think tank - asserts there are 3 False Claims in the Republican Attorney Generals and Governors  Anti-Health Care Reform Brief by former Solicitor General Paul Clement.
Paul Clement's Fake Constitution:

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I Pledge Allegiance to the CCP….Chinese Lawyers’ New Oath Requirements | China Law & Policy

Elizabeth Lynch has an interesting discussion of the new oath of office required of Chinese lawyers.  (below) It is a high level expression of what has recently been often observed: a harder line against dissident lawyers, and dissidents who support a western-style multi-party democracy.
The Communist party's leading role is embedded in the PRC Constitution.  So the new addition to the pledge (below)is surplusage, intended to send a message "don't even think about it".
I remember when they changed the Pledge of Allegiance, inserting the awkward phrase "under God", which disrupted the flow of the pledge.  I still resent it though for reasons that did not occur to be as a 10 year old.  "Under God" is what it is intended to be: an affirmation that we are believers - unlike those atheistic commies.  So in my opinion it is an offensive intrusion - an assertion that any non-believer is disloyal.  -GWC
"“I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!”"

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Fed Circuit en banc asserts jurisdiction over patent legal malpractice cases

In Byrne v. Wood, Herron & Evans, LLP the U.S. Court of Appeals for the Federal Circuit continued its wrong-headed assertion that legal malpractice claims arising from patent cases are in federal jurisdiction and must be reviewed by the Federal Circuit under its exclusive appellate jurisdiction over patent cases.  Judge O'Malley dissented:
It is time we stop exercising jurisdiction over state law malpractice claims.  I dissent from the court’s refusal to consider this matter  en banc so that the case law through which we have expanded the scope of our jurisdiction to these purely state law matters can be reconsidered and revamped.   

The reasons for O'Malley's dissent are obvious. Under Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 809 (1988), federal jurisdiction under 28 U.S.C. § 1338 exists if “the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.”
The Federal Circuit has exercised jurisdiction
when the adjudication of the malpractice claim requires the court to address the merits of the plaintiff’s underlying patent infringement lawsuit,”  Warrior Sports, Inc. v. Dickinson Wright, P.L.L.C., 631 F.3d 1367, 1371 (Fed. Cir. 2011), and when a “claim drafting error is a necessary element of the malpractice cause of action,”  Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281, 1285 (Fed. Cir. 2007).  
But the case within a case issue does not "resolve" any question of federal patent law.  It simply requires that a fact be proven: that the underlying case had merit and that the defendant attorney was negligent.  No patent law question is decided.  Based on this misunderstanding the Federal Circuit has preempted state law claims, arrogating to itself supervisory authority over lawyers who are licensed in the states.
The Federal Circuit asserts:

State court decisions imposing attorney discipline for conduct before the PTO and in federal patent litigation based on an incorrect interpretation of patent law are almost certain to result in differing standards for attorney conduct and to impair the patent bar’s ability to properly represent clients in proceedings before the PTO and in the federal courts. 
But as O'Malley argues:
“[T]he mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.”   Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986).  (1) the federal issue, even if present and disputed, is not “substantial”; and (2) exercising jurisdiction would upend the appropriate federal-state division of judicial labor.
As explained below, this court’s erroneous approach to both of those considerations has caused it to extend its jurisdiction improperly to patent-related malpractice claims. "
Dissenting, Judge O'Malley elaborates:

Federal Circuit case law on this issue has been out of  step with that of other federal and state courts.  In postGrable cases involving state law tort claims that involve any federal law other than patent law, courts correctly follow a restrictive approach to federal question jurisdiction in finding that such cases belong in state court.  Indeed, even where state law claims involve federal law questions over which federal courts have exclusive jurisdiction (e.g., Sherman Act, copyright), other areas of § 1338 jurisdiction (e.g., trademark, copyright), areas that are uniquely federal in nature (e.g., federal criminal law, federal tax code, aviation standards), or more gardenvariety federal issues (e.g., Title VII, Age Discrimination in Employment Act (“ADEA”)), courts consistently find that such claims do not invoke federal court jurisdiction.  

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Saturday, March 24, 2012

Never Before -

Freeing herself from the false equivalence trap, legal autodidact Linda Greenhouse, formerly Times Supreme Court reporter and now at Yale law School, lays bare the conceptually thin but superficially appealing attack on the "individual mandate" in the Affordable Care Act - set for oral argument this week. - GWC
Never Before -
by Linda Greenhouse
"Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there."

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New Gulf oil spill claims administrator sends first payments |

New Gulf oil spill claims administrator sends first payments |
by David Hammer - The Times Picayune
"Patrick Juneau the new Gulf oil spill claims administrator has released his first public report of payments made as the process shifts from Kenneth Feinberg's operation to one that will pay claimants under the terms of a proposed legal settlement. New court-supervised claims administrator Patrick Juneau of Lafayette said Friday that from March 8 to March 21, the transition claims processing team has paid 1,096 claimants a total of nearly $27 million."

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Generic Drugs Prove Resistant to Damage Claims -

Generic Drugs Prove Resistant to Damage Claims -
by Katie Thomas
 "Across the country, dozens of lawsuits against generic pharmaceutical companies are being dismissed because of a Supreme Court decision last year that said the companies did not have control over what their labels said and therefore could not be sued for failing to alert patients about the risks of taking their drugs."
In Pliva v. Mensing the Supreme Court (5-4), in an opinion written by Justice Clarence Thomas, dismissed a drug product liability case, distinguishing it  from Levine v. Wyeth (2009).  The difference?  The drug at issue was a generic.  Despite strong arguments by AARP and Public Citizen in an amicus brief, the majority held that a copycat manufacturer had no right to change the drug warning label without FDA permission.  Thomas's interpretation of the Hatch Waxman Act (which eased the path to approval for generic manufacturers) has been a bonanza for generic drug makers - and a disaster for injured patients, as trial courts have swept cases from their dockets.  
Though Public Citizen has petitioned for a rule change, the FDA has not acted to change its rules, nor has the Congress.  Plaintiffs' only hope is for swift FDA reaction - and a Democratic President and Congressional majority because "tort reform" and hostility to product liability litigation has become a staple of the Republican Party platform.  
The underlying logic of change is a policy I called "product stewardship" in my 2007 article Punctuated Equilibrium.  As the Institute of Medicine said in its landmark report The Future of Drug Safety, little is known about safety until the drug is used in "real world" conditions.  Drug safety must be a priority for the entire "life cycle" of a drug - from its experimental phase to the post-marketing phase when large numbers of patients take the drug.   Even drugs long on the market are understood in new ways with experience.  Generic manufacturers are a big part of the market and they are obligated to stay current with developments in their industry, and to report what they learn.  All manufacturers should be compelled to gather and share that knowledge.  that is the logic of the expert standard of care we have imposed on product makers for the past 50 years since the American Law Institute promulgated its landmark strict product liability doctrine in Section 402A of the Second Restatement of Torts.

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Tuesday, March 20, 2012

I still don't believe Wilpon and Katz "knew" about Madoff - George Vecsey

The great Times sports writer George Vecsey has been around New York baseball for a long time.  He has s somewhat sympathetic view of Fred Wilpon and Saul Katz.  I don't know them.  At my distance I think they "should have known" that their good buddy Bernie Madoff was a creep: doesn't character show when you see people up close and over a long period of time?  
But I am nonetheless inclined to agree that greed blinded them - the Madoff constant (high) rate of return was rationalized: and they put themselves and their families at enormous risk - and, ultiamtely, great loss. - GWC
I Still Don’t Believe Mets’ Owners “Knew” - George Vecsey: "I think I am old enough to recognize a stricken look.

That is what I have seen on the faces of Fred Wilpon and Saul Katz in the past two years. They are of my generation – although a tad more wealthy – and I think I can tell the look of two people who felt betrayed by a friend. They have seen ruin and even death up close, to people they know.

Now they have settled their case, and perhaps they and the Mets can move on. Or not. But I come to this stage still unconvinced that Wilpon and Katz “knew” Madoff was cheating.

My belief is not based on their including Sandy Koufax in the Madoff web. That’s just one small piece of it.

I have read documents filed by the trustee, listing all the accounts held by Wilpon and his brother-in-law, Katz. The accounts are in the names of Wilpons and Katzes and other people clearly related to these two partners. The next generations, living mostly in favored suburbs of New York. "

Monday, March 19, 2012

Old Memo Casts More Doubt on Rehnquist’s View of ‘Separate but Equal’ -

Old Memo Casts More Doubt on Rehnquist’s View of ‘Separate but Equal’ -

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Mets Owners and Madoff Trustee Allies Now

No way to know but I see the invisible hand of mediator Mario Cuomo, baseball fan, onetime prospect.  - GWC
by Ken Belson
"The settlement between the owners of the Mets and the trustee representing the victims of the fraud orchestrated by Bernard L. Madoff ends a rancorous legal fight between two parties that were willing to dig in their heels and openly point fingers.
But in a twist, the former adversaries are now on the same side. That is because the settlement calls for Fred Wilpon and Saul Katz, the Mets’ owners, to receive $178 million from the trustee for money they lost in some of their Madoff accounts. That money will be used to pay back the trustee to cover the $162 million in fictitious profits that Wilpon and Katz received in other accounts."

Mets’ Owners and Madoff Trustee Settle Suit -

Saul Katz and Fred Wilpon at Mets training camp.  NY Times
The Times reports that Fred Wilpon, Saul Katz, et alii have settled with Irving Picard the SIPC trustee trying to recover funds lost by investors in the Madoff ponzi scheme:
The $162 million [settlement] includes the $83 million that the Mets owners had already been ordered to pay the trustee, is to be paid out of money Wilpon and Katz expect to recover as a "net loser" of the Madoff scheme. Recovery chances are good, said David J. Sheehan, counsel to Picard.  
I have had trouble grasping the theory that trustee Picard was relying on to recover from Mets owner Fred Wilpon and his partners and family.  He alleged in the complaint 
The Sterling partners, their family members, their related trusts, and various entities they own, operate, and control were collectively one of the largest beneficiaries of Madoff’s fraud, reaping hundreds of millions in fictitious profits over their quarter-century relationship with Madoff.  The Sterling partners, their family members, trusts and Sterling-related entities made so much easy money from Madoff for so long that despite the many objective indicia of fraud before them, the Sterling partners chose to simply look the other way...
It's not collusion, it's not aiding and abetting, it is...what is it?   Dishonest advice to friends?   Maybe negligent misrepresentation.  Unclean hands? That seems closer to it.  And the settlement works that way.  In the end Wilpon & Katz lost money with Madoff.  But they are entitled to recover a proportionate share of the money the trustee recovers from culpable wrongdoers - like the feeder funds with whom significant settlements are being achieved, such as the $1 billion settlement wit Tremont Group Holdings, Inc.  
Now Wilpon & Katz's recovery will be reduced by the amount of their share of such settlements.  So even though they lost money, their constructive knowledge of the scheme, their conduct in recommending Madoff's fund to friends and others, disentitles them to recovery.      

More dubious are claims like that against J.P. Morgan who, Picard charged, aided and abetted the fraud.  There the trustee's efforts have been limited.  Picard may not assert claims, the District Court held, on behalf of investors.  It is BMIS - Madoff's firm- that he is liquidating and as SIPC trustee Picard he stands in its shoes.   

Mets’ Owners and Madoff Trustee Settle Suit -

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Saturday, March 17, 2012

SEC v. Citigroup - 2d Cir.: Rakoff settlement rejection unlikely to succeed

John Walker, Circuit Judge
Ruling Gives Edge to U.S. in Its Appeal of Citi Case -
A panel of the United States Court of Appeals for the 2d Circuit sharply scored District Judge Jed Rakoff's rejection of the settlement proposed by the SEC and Citigroup Global Markets.  The case arises from Citigroup's work as an investment bank.  Citi did not disclose to buyers of CDOs - bets on residential mortgage backed securities - that Citigroup Global Markets itself was on the other side of the bet.
Rakoff had ordered the parties to proceed to a June trial.  On March 15 that order was stayed by the 2d Circuit which found that Rakoff's order was unlikely to  prevail on appeal. 

Jed Rakoff, D.J.
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Wednesday, March 14, 2012

Jury Finds Va. Tech Negligent in '07 Shootings -

Torts theorists and torts teachers generally underestimate the importance of vindication as a remedy in tort. - GWC
Jury Finds Va. Tech Negligent in '07 Shootings -
"It took jurors 3 ½ hours on Wednesday to find that university officials botched their response to the massacre on April 16, 2007, that left 33 people including the gunman dead. The jury determined that the Prydes and Petersons each deserved $4 million, but the award is likely to be sharply reduced. State law requires it to be capped at $100,000.
Still, the amount of the award mattered little to the two families.
"We were looking for truth for a long time," Harry Pryde said outside the courthouse that's less than 10 miles from Tech's Blacksburg campus. "We persevered and we got some truth today."
The parents' lawsuit argued that lives could have been spared if school officials had moved more quickly to alert the campus after the first two victims were shot in a dorm."

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Tuesday, March 13, 2012

ImmigrationProf Blog: The Top 10 Things You Should Know About Alabama’s Demographic Changes and Immigration Politics

ImmigrationProf Blog: The Top 10 Things You Should Know About Alabama’s Demographic Changes and Immigration Politics:
by Kevin Johnson
 "Just in time for the Mississippi and Alabama Republican primaries, Vanessa Cárdenas and Angela Maria Kelley of the Center for American Progress today released the "Top 10 Things You Should Know About Alabama’s Demographic Changes and Immigration Politics."  The Alabama legislature passed the toughest state immigration enforcement measure of them all."

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BP gulf oil spill: not a global settlement, but...

Deepwater Horizon Oil Spill Toronto Google MapsDespite the absence of a minimum participation trigger the BP oil settlement is likely to dispose successfully of the economic loss claims against the company.
Little is known about the BP settlement with the Plaintiffs Steering Committee in the BP gulf oil spill cases, but informed opinion is beginning to enter the public discussion.  Prof. Ed Sherman (Tulane) makes the observation that there is no trigger to actuate the BP settlement.  In the Vioxx cases it was 85% - not until that percentage of claimants signed on did Merck have to fund the settlement.  In the WTC cleanup cases it was even higher.  Absent in BP.  The problem is that the litigation barely got started!  Louisiana has a one year statute of limitations, but state claims proved insignificant.  Maritime claimants for personal injury or death have 3 years under the Uniform Statute of Limitations for Maritime Torts.  Same for Oil Pollution Act  claims.

So what will be the wedges to get wide acceptance?
First - cash on the barrel head.  Most claims are small claims.  Only aggregation makes the undertaking viable for lawyers.  And most of those claimants will take the money and run - reducing the viability of prolonged litigation.
Second - categorization of recognized claims in a "grid"will greatly increase certainty.  Recognized categories will be broader than any court has recognized.  That limits the appeal of litigation in hope of a broader scope of liability or higher damage award.  Likely not worth the time, expense, and uncertainty.
Third - exclusion of those not included will reduce the number of claimants. There are surely thousands of  "moratorium claims" for layoffs and lost sales during the U.S. mandated moratorium on deepwater drilling.  That exclusion will be loudly voiced at a "fairness hearing" but ultimately will be resolved in the United States Court of Appeals (or higher).  I wouldn't bet my boat on that if I were a plaintiffs lawyer in Louisiana.

Fourth -  there are going to be class certifications with damages  formulas.  A good definitional puzzle. FRCP Rule 23 commonality is hard to establish.  What about Amchem and the right to an individual day in court?  It's not like calculating losses in a securities fraud case.  Market prices and dates of disclosure make securities losses easy to frame.  Even pure economic claims here have a high degree of diversity.  Fishermen's losses have a lot of variability - because the catch varies year to year.  Averaging helps, and there will surely be a dose of that - extending the comparison period beyond the year 2009 and 2010 partial year used by Feinberg in the GCCF.   Many business losses will also be hard to show.  Such uncertainty inclines one toward the bird in hand.  - GWC

What BP bought in $7.8 billion deal with plaintiffs' lawyers: (Alison Frankel's On the Case, Thomson Reuters)
 "Defendants in recent mass tort settlements have typically insisted on provisions that call for deals to dissolve unless a certain percentage of plaintiffs sign on. The BP settlement, by contrast, has no such requirement. Edward Sherman of Tulane University Law School said that BP might have reckoned it wasn't worth holding out for certainty. (A spokeswoman for BP declined to comment.) "Rather than putting the whole settlement at risk if they didn't achieve that, I think they were just willing to believe there was not going to be massive opt-outs," he said.
We'll find out soon enough whether that turns out to be true"

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Rick Santorum’s Medical Malpractice Lawsuit - ABC News

gty rick santorum jef 120214 wblog Rick Santorums Medical Malpractice LawsuitRick Santorum's wife won a $350,000 award against a chiropractor - reduced to $175,000 - though we don't know why.  The chiropractor caused a herniated disk is a pretty thin claim.  I have often observed that tort reformers turn into plaintiffs' lawyers as soon as they have a claim.  Florida's tobacco litigation is a case in point.    Santorum now says his support for a$250k cap in medmal cases is a bit low. Despite his commitment to home schooling, Santorum has a J.D. from Dickinson which is now part of Penn State. - GWC
Rick Santorum’s Medical Malpractice Lawsuit - ABC News:
"Rick Santorum has often called for limits medical malpractice lawsuits, but back in 1999, his wife Karen sued her chiropractor $500,000 for allegedly injuring her back.  Santorum testified in the case, telling the jury that the injury caused his wife pain and impaired her ability to campaign for him.
She “likes to be fit,” Santorum told the jury according to an December 1999 article in Roll Call.  “We have to go out and do a lot of public things. She wants to look nice, so it’s really difficult.”"

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Spend Money on Schools Instead of the War on Drugs - Room for Debate -

Spend Money on Schools Instead of the War on Drugs - Room for Debate -
Neill Franklinby Neill Franklin - Exec. Director - Law Enforcement Against Prohibition "Thanks to our ramped up "war on drugs," when I walk down the street in my old neighborhood I see houses where one or both parents are behind bars or on probation or parole.
Fifty-three percent of black boys never finish high school. Among those who drop out, 60 percent end up spending time behind bars. Even those who stay in school are seemingly being prepared for prison. Many schools treat kids as suspect from the moment they walk in the door, making them pass through metal detectors or administering urine tests as a condition of joining after-school clubs. Cops move about the schools like prison guards. It's like we're conditioning them for a life of incarceration.
Perhaps if we spent less money in a futile attempt to eliminate drug use through suspicion, arrests, prosecution and punishment, we could invest resources in improving our schools to ensure that more of our young people get the preparation they need to succeed.
Ending the drug war won't be a cure-all for racial disparities in our society, but it is a necessary first step."

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Monday, March 12, 2012

Eleventh Circuit Blocks More Alabama Immigration Law Provisions - Immigration Law - U.S. Eleventh Circuit

Eleventh Circuit Blocks More Alabama Immigration Law Provisions - Immigration Law - U.S. Eleventh Circuit: "The Alabama immigration law, once regarded as the toughest state immigration law in America, is quickly becoming unenforceable.

After hearing oral arguments on both the Alabama and Georgia laws last week, the Eleventh Circuit Court of Appeals enjoined two more sections of the Alabama law on Thursday, reports The Huntsville Times.

The latest appellate action on the Alabama immigration law places contract provisions banning residents and state and local governments from entering into contracts with illegal immigrants on hold while the Supreme Court and the Eleventh Circuit consider whether state and federal immigration laws can co-exist."
ORDER of March 8, 2012

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How accidents happen

Copyright, New York Times

Sunday, March 11, 2012

11th Circuit Court of Appeals blocks two more sections of Alabama immigration law |

11th Circuit Court of Appeals blocks two more sections of Alabama immigration law | by Brian Lawson
"The 11th Circuit Court of Appeals has issued an order today blocking two more sections of Alabama's immigration law pending the court's final ruling, which is expected this summer.
In a short order, the Atlanta-based court blocked provisions that bar residents from knowingly entering into contracts with illegal immigrants and ban illegal immigrants from entering business transactions with state and local governments.
The ruling came after a hearing last week when the U.S. Department of Justice and a group of plaintiffs argued that the two sections make it all but impossible for immigrants whose status is still in limbo and those here illegally to live in Alabama.
The court did not block sections 12 and 18 that deal with seeking immigration status information for people during a traffic stop, those arrested or found driving without a license."

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Saturday, March 10, 2012

Death Taken on Faith: U.S. should explain its basis for killing al-Awlaki

The New Jersey Law Journal Editorial Board says The U.S. government should make known what it thinks is the legal basis of its right to kill American citizen Anwar al-Awlaki and others like him by command of the executive.
Death Taken on Faith:

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The Phony Settlement - Joe Nocera -

New York Times columnist Joe Nocera engages in the popular sport of lawyer bashing. His target is the BP oil spill settlement process. He thinks...oh, never mind, read it and think.  BTW you might take a look at my article Diving Into the Wreck  - GWC
The Phony Settlement -
by Joe Nocera
"Forgive me for repeating myself, but I’m going to start this column with an anecdote about Ken Feinberg that I’ve told before..."

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Thursday, March 8, 2012

No deal: BP refuses to pay drilling moratorium loss claims

R&D - leases containers to drilling rigs
business faltered during the drilling moratorium

When BP's Macondo well blew out, spilling millions of gallons into the Gulf of Mexico the federal government imposed a moratorium on deepwater drilling.  Those who suffered losses due to the regulatory moratorium - not the spill itself - made claims.  But BP ordered its claims administrator Kenneth Feinberg not to pay those claims.  As details of the settlement in principle leak out, we learn the BP still has not budged.  
It is a classic proximate cause question.  But for the spill the moratorium would not have occurred.   But was the government action so independent of BP's conduct that the company should bear no responsibility for the moratorium claimants losses?  Someday Judge Carl Barbier who is managing the litigation will have to decide. - GWC
Gulf oil spill moratorium claims have no place in BP settlement | by David Hammer, The Times Picayune
"We fought to have moratorium claims included, but BP wouldn't budge," said Stephen Herman, co-lead counsel for the plaintiffs' committee that negotiated the settlement. "We're fully prepared -- and intending to -- litigate them."
Bertucci's lawyer, Joe Bruno, called BP's recalcitrance on the moratorium issue "a crying shame."
BP declined to comment Tuesday, but last November, when Feinberg urged BP to pay 6,000 moratorium claims that the company had expressly prohibited him from paying, the company was unequivocal in its refusal.
The federal oil spill law "was not designed to remedy claims arising from the government's decision to impose a temporary moratorium," BP spokesman Curtis Thomas said at the time."

Wednesday, March 7, 2012

Saintgate: Coach and G.M. Acknowledge Bounty Inquiry -

Saints’ Coach and G.M. Acknowledge Bounty Inquiry - "“We acknowledge that the violations disclosed by the N.F.L. during their investigation of our club happened under our watch,” the statement said.

It continued: “These are serious violations, and we understand the negative impact it has had on our game. Both of us have made it clear within our organization that this will never happen again, and make that same promise to the N.F.L. and most importantly to all of our fans.”

Williams apologized for his role in the bounties on Friday. Williams, Loomis, Payton and perhaps some Saints players who were involved are expected to face severe penalties in the form of suspensions and fines. The team could also lose draft picks."

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BP Settlement Architects Hope To Win Over Skeptics | Fox News

BP Settlement Architects Hope To Win Over Skeptics | Fox News:
"I would say Mr. Feinberg did the best he could under very challenging circumstances, and he played the cards he was dealt to the best of his ability. But now we're starting with a new deck," said Steve Herman, one of the lead plaintiffs' attorneys in the litigation.
Herman expressed confidence that the settlement's architects can convince skeptics that a court-supervised claims process is a better vehicle for resolving claims than the GCCF has been.
"It recognizes more claims than were recognized under the GCCF," he said. "It gives the claimants more flexibility in establishing their losses and offers more security as to future risks."
Herman said the GCCF formula for calculating a claimant's economic losses compared 2009 revenues with post-spill 2010 revenues. The settlement program would allow a claimant to compare 2010 revenues against a broader time period, looking at revenues between 2007 and 2009, according to Herman.
Claimants will have a right to appeal any settlement offered though the court-supervised process to a neutral party or panel of up to three people. BP also can appeal any award over $25,000, but the company would have to pay a 5 percent penalty to the claimant if it loses, according to Herman.

Read more:

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Monday, March 5, 2012

OTHERWISE: Sandra Fluke's House Testimony

OTHERWISE: Sandra Fluke's House Testimony:

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China to compensate for sea pollution|Society|

oil rig and response vessels at spill site Bohai Bay, China, 2011
China to compensate for sea pollution|Society| "China will establish a state compensation system for pollution in the marine environment, according to a NPC (National People's Congress) deputy , the Shanghai Evening Post reported on Monday.
China's marine department will overhaul all new and expended projects on the Bohai Sea and improve the sea environment in the area, Lv Bin, official from China's State Bureau of Ocean was quoted by the paper.
The move comes after a series of oil spills that began on June 4, 2011 in Bohai Bay that destroyed the livelihoods of hundreds of fishermen."

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CPRBlog: After Partial Settlement, Oil Spill Case on a Slow Boil

"On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.

Before I get to the federal claims, here’s why I like the settlement. The private claims—brought by shrimpers, restaurant owners, injured responders, the families of fallen rig operators and more—were incredibly diverse in factual elements and dogged by the uncertain standard that controls large punitive awards. That not only made their claims hard to value, but insured that any generous verdict would be sent into the deep-space of federal appeals, delaying for years the compensation that many families and small businesses need now."

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N.J. Supreme Court Justice Virginia Long required to retire |

virginia long2.JPG N.J. Supreme Court Justice Virginia Long required to retire | "TRENTON — With stacks of framed photographs piled on a polished wooden table in her office at the Richard J. Hughes Justice Complex, Supreme Court Justice Virginia Long returned a phone call last week from a former colleague wishing her a happy birthday.
She had just turned 70 — the age when all judges in New Jersey must retire — and was packing her belongings from 34 years as a state judge, the last 13 on the state’s highest court."

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BP spill settlement promises fast payouts |

BP spill settlement promises fast payouts |
by Rebecca Mowbray, The Times Picayune
"After reaching a deal Friday night to settle health and economic damage claims by individuals and businesses who were harmed by the Gulf of Mexico oil spill, BP and plaintiff attorneys leading the litigation say the court-supervised claims process will begin immediately.
The plaintiffs say that the new process will be more transparent than the Gulf Coast Claims Facility. Calculations will be made under formulas approved by the court, so people will be able to see exactly how their award was made and can dispute it if necessary. Few details are available about how the claims will be organized, but they take into account the types of damage and proximity to the coast. Each claim will be multiplied by a "risk transfer premium" that will differ by type of claims since no punitive damages were awarded by a court. The plaintiffs say that the risk transfer premium will ensure that their deal will pay more in compensation than what Feinberg did, but not enough details have been worked out from their agreement in principle to say what the multipliers are and how large the biggest multiplier is.
Gulf Coast Claims Facility Administrator Kenneth Feinberg, shown testifying before a U.S. Senate committee in 2011, will leave his post sometime this week.
Ken Feinberg, the administrator of the Gulf Coast Claims Facility, which has been paying claims on behalf of BP using money from a $20 billion fund, will step aside sometime this week"

Sunday, March 4, 2012

Saintgate - N.F.L. Bounties Could Lead to Lawsuits -

The New Orleans Saints offered rewards to players whose rough play knocked opposing teams' players out of the game. The implied consent that athletes grant when they play football (being tackled and thrown to the ground) does not include consent to intentional injury. Professional hockey has long been corrupted by the use of "enforcers" - players encouraged to play the role of thugs on the ice. It seems that the NFL may have tolerated similar behaviour. - GWC
N.F.L. Bounties Could Lead to Lawsuits - "According to two sports law scholars, the team, Williams and individual players could be held liable in court if an opponent can prove that a member of the Saints injured him on a play that is outside the norm for football and that the Saints player acted with reckless disregard for the opponent’s safety.

“As a general rule, those who participate in sports assume the inherent risk of injury therein,” said Matt Mitten, the director of the National Sports Law Institute at Marquette University Law School. “You break your arm? Suffer concussion? Broken leg? But what most courts have held is you do not assume the risk of an intentional or recklessly caused injury. Contact is an inherent element of N.F.L. football; it’s not enough just to contact someone.

“I would see something as a bounty, where you’re intending to injure someone so he’s knocked out of the game, or reckless, the deliberate disregard of a high probability of harm — those are the types of situations where the courts have said: ‘That’s not a risk that people assume. There is potential liability to those who suffer injury.’ ”"

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BP announces settlement with Plaintiffs' Steering Committee (PSC), subject to final written agreement | Press | BP

The settlement - which does not include governmental claims - would bring an end to the "pseudo-fund" - the Gulf Coast Claims Facility, administered by the Feinberg Rozen law firm for BP. The agreement with the Plaintiffs Steering Committee is to be reduced to writing within 45 days. Only when we see the claims protocols will we be able to begin to assess what, if anything, has been accomplished. - GWC
BP announces settlement with Plaintiffs' Steering Committee (PSC), subject to final written agreement | Press | BP: "The proposed settlement is comprised of two separate agreements, one to resolve economic loss claims and another to resolve medical claims. Each proposed agreement provides that class members would be compensated for their claims on a claims-made basis, according to agreed compensation protocols in separate court-supervised claims processes. The proposed agreement to resolve economic loss claims includes the financial commitment for the Gulf seafood industry and a fund to support continued advertising that promotes Gulf Coast tourism. "

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Saturday, March 3, 2012

Gulf oil spill settlement reached; BP expected to pay out $7.8 billion |

BP Oil Spill: a Look Back
photo: NOLA- Times/Picayune
Gulf oil spill settlement reached; BP expected to pay out $7.8 billion | "BP and the private plaintiffs in the massive Gulf oil spill litigation have reached a settlement that BP estimates will cost $7.8 billion. But that is an uncapped amount, an the court still must supervise the payment of damages. U.S. District Judge Carl Barbier also issued an order delaying the trial for a second time in light of the settlement."

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BP statement on the oil spill settlement in full - Telegraph

BP statement on the oil spill settlement in full - Telegraph:

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Accord Reached Settling Lawsuit Over BP Oil Spill -

Accord Reached Settling Lawsuit Over BP Oil Spill -

"BP and the lawyers for plaintiffs in the trial over the 2010 oil spill in the Gulf of Mexico have agreed to settle their case.

Judge Carl J. Barbier of Federal District Court in New Orleans issued an order late Friday night stating that the two sides “have reached an agreement on the terms of a proposed class settlement which will be submitted to the court,” and announcing that the first phase of the trial, scheduled to begin on Monday, is adjourned indefinitely while the next steps are worked out"
The agreement calls for replacing the $20 billion fund created by BP to compensate victims of the spill, and to pay natural resources damages and state and local response costs. The fund, called the Gulf Coast Claims Facility and run by Kenneth R. Feinberg, a lawyer, would become a new fund administered by the court. Mr. Feinberg has paid more than $6 billion from the fund to some 200,000 individuals and businesses. The company announced that payments to people making claims under the Feinberg fund would continue to be paid during the transition.
“Ken Feinberg has overseen the GCCF since it began operating in August 2010, and we thank him and his team for their dedication and professionalism,” BP spokesman Robert Dudley said in the news release
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Thursday, March 1, 2012

BP settlement talks collapse, sources say (Updated) | Loren Steffy | a blog

Press reports say that settlement talks have faltered as lawyers are poised to begin the first phase of the liability trial in the BP oil spill cases. Inability to define the class of claimants is obstructing the ability to develop a global settlement: one that disposes of virtually all claims, which is the gold standard now for mass tort claims. - GWC
BP settlement talks collapse, sources say (Updated) | Loren Steffy | a blog: "Settlement discussions have run hot and cold in the months leading up to the trial, and could still resume before the proceedings begin. Steve Herman, one of the lead attorneys on the Plaintiffs Steering Committee, insisted the talks were ongoing.

“Talks are continuing,” he said in a statement.

Houston attorney Tony Buzbee, who represents as many as 12,000 spill-related clients, said one of the stumbling blocks has been how to resolve cases that haven’t been filed yet.

“The bulk of the cases are not in the litigation,” he said. “The PSC cannot guarantee BP global peace, so as far as BP’s concerned, it cannot settle.”"

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