Decided

Texas District Court Rules In Favor of Merck & Co. in Vioxx Suit

2009-11-24T21:30:19Z

Reuters reports that Merck & Co. was granted a motion for summary judgment in a lawsuit brought by the Texas Attorney General's office against the drug maker over its pain killer Vioxx. The Texas AG brought the suit for alleged violations of the state's Medicaid Fraud Prevention Act.

The lawsuit sought a refund for the money that was spent for Vioxx pain treatment. Vioxx was withdrawn from the market over safety concerns. Reuters reports that Judge Scott Jenkins of Travis County ruled in favor of the drug company's motion for summary judgment. This is critical news because there are currently 11 similar lawsuits that have been filed by other states' attorneys general against Merck & Co. This is the first case to reach final judgment at the trial level.

This is the not first time that Merck & Co. has been in trouble over Vioxx. They voluntarily withdrew Vioxx from the market back in 2004 when it became publicly known that the drug increased the risk of heart attacks and strokes in long term users. A class action lawsuit by users of the drug resulted in a $4.85 billion settlement in 2007. We blogged about the settlement here.

Reuters also reported that a recent study has shown that Merck & Co. could have detected heart risks more than three years before the company actually withdrew Vioxx from the market. This knowledge, coupled with the class action lawsuit, spurred state attorneys general to file their own lawsuits against the drug company.

In addtion to the $4.85 billion class action settlement, Merck & Co. has already agreed to pay $58 million to 29 states and the District of Columbia in order to settle Vioxx probes with regards to state consumer protection laws.

Related Resources:

Vioxx - FAQs (Findlaw)
Vioxx - Overview (Findlaw)
Vioxx Heart Risks Shown in Long-Term Study (Findlaw's Common Law)
Pharmaceutical Liability FAQ (provided by Fitts Zehl, LLP)
Personal Injuries from Dangerous or Defective Products (provided by Gregory S. Young Co., L.P.A.)

Court in NY Rules That Ignoring Is Not Abandonment

2009-11-24T20:00:54Z

Well it turns out New Yorkers can't divorce their spouses if they are being ignored.

The case of Davis vs. Davis decided that a husband who ignored his wife has not constructively abandoned her. Constructive abandonment is one of the fault based criteria that New York state uses for divorces. New York State is the only state that does not have no-fault divorce.

The Cause of Action

The wife filed for divorce under two causes of action: the first was for cruel and inhuman treatment and the second was for abandonment. The husband sought to dismiss the second cause of action because he claimed that the wife's complaint did not contain allegations of constructive abandonment.

The Wife's Argument

The wife argued that she was socially abandoned by her husband. The opinion states that the complaint alleges that the husband was ignoring his wife: "Rather, the complaint alleges that the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her."

Husband's Argument

The husband argued that his wife's cause of action should be dismissed because his wife failed to state a cause of action in her complaint.

Court's Opinion

The Appellate Court did ont agree with the wife argued, although there were two court opinions back in 2005 that supported her cause of action. The Appellate Court agreed with the couple's trial court opinion that the wife's "social abandonment" allegations "do not support a cognizable legal theory."

The Appellate Court decided that while the other trial level courts have kept the door open on social abandonment, it is not quite as clear as constructive abandonment:
"'Social abandonment' eludes clear or easy definition, unlike traditional constructive abandonment, even if both causes of action were to be patterned upon parallel legal elements." It also went on to outline how constructive abandonment meant physical abandonment or lack of sexual relations. So, no sex can lead to constructive abandonment, but no talking doesn't count.

Looks like another reason for New Yorkers to push for no-fault divorce now!

Related Resources:

New York Legal Requirements for Divorce (Findlaw)
Verified Complaint Sample: Action for Divorce in NY (NY Courts)
Law on Divorce and Child Custody - New York (Findlaw)
Divorce Mediation (provided by Gill Law Practice)
Divorce FAQs (provided by McNeil & Goldstein, LLC)

Scared to Death: Man Convicted for Woman's Heart Attack

2009-11-23T21:45:58Z

The verdict sounds like a punch line, but two lives are over as a result. Not guilty of murder, but guilty of scaring a grandmother to death, 20 year-old Larry Whitfield will be facing a life sentence from the verdict handed down in a North Carolina courtroom on Friday.

While running from police after a bungled bank robbery attempt, Whitfield broke into the home of 79 year-old Mary Parnell in September of 2008. According to reports, Whitfield did not physically harm Parnell, but had her sit in a chair in her bedroom. The federal jury found that the shock and fear of experience caused a massive heart attack. Parnell was dead when her husband found her hours later.

Parnell's family was satisfied with the verdict. Son-in law David Hains said "My mother-in-law had a heart attack right in front of this guy, and he didn't even have the decency to call an ambulance."

When the case came to national attention back in January, many reports predicted prosecutors would rely the on felony murder rule to hold Whitfield responsible for murder. Under this rule, any death caused by a perpetrator of a violent class of crimes such as robbery, rape, or kidnapping can be found responsible for a death even if he did not directly cause it. The law reasons that if you are attempting a dangerous and illegal act such as robbery, it is forseeable that some person involved could be fatally harmed. According to the Huffington post, Whitfield was found guilty of kidnapping Parnell and her death occurred as a result of that crime. A life sentence is mandatory.

Whitfield had no prior record and was a high school graduate.

Related Resources:

Man guilty of scaring elderly woman to death (Charlotte Observer)
Man Scared Woman to Death, Police Say (AP)
Larry Whitfield Found Guilty: Man Blamed For Scaring Grandmother To Death After Running From Bank Robbery (Huffington Post)
First degree murder/felony murder rule (FindLaw)
Scared to Death: How Fright Can Kill (ABC News)
Classifications of Crimes (provided by Randolph L. Goldman)
Criminal Defense FAQ (provided by Greg Smith and Steven Russell, Criminal Law Attorneys)

Court Upholds $6 Million McDonald's Strip Search Verdict

2009-11-23T20:50:04Z

McDonald's will have to serve up $6.1 million to plaintiff Louise Ogborn, and an additional award to former assistant manager Donna Summers, according to the Kentucky Court of Appeals decision announced last Friday. The award stems from a 2007 trial charging McDonald's with allowing the strip search, false imprisonment and sexual assault of the McDonald's employee with the unwitting collusion of her then manager, Ms. Summers.

According to the Court's opinion in McDonalds Corp v. Ogborn, McDonald's had received, between 1994 and 2004, more than 30 hoax calls to its restaurants where the caller, posing as a policeman, convinced employees to stripsearch "theft suspects." Some calls (as in the Ogborn case) lead to sexual assault. The court found that even though McDonald's was well aware of this on-going problem, it failed to train or warn its employees about it. This lack of action lead directly to Ogborn's ordeal and the court held McDonald's fully responsible.

Upon receiving the hoax call, Summers forced Ogden to remove all her clothes and left her in a small office with no clothing or cell phone. Summers was convinced by the caller to allow Ms. Summers' fiancé, Walter Nix, to remain alone with Ogborn who, with the caller's instruction and encouragement, sexually assaulted Ogborn. Nix seved time in prison for assaulting Ogborn. Summers plead to misdemeanor unlawful imprisonment.

McDonald's position on appeal was, while admitting what happened to its employees was wrong, that neither the caller nor Nix, who actually committed the sexual assault, was an employee and therefore company should not be liable. The court disagreed. Because McDonald's had knowledge of other hoax calls and the resulting criminal activity, Nix's acts were a "foreseeable danger, one naturally resulting from McDonald's decision not to warn, train, or supervise its managers and owners that these hoax calls were an ongoing problem."

Both Ogborn and Summers underwent counseling as a result of the incident.

Ogborn and Summers were each awarded damages for emotional distress stemming from the incident. The court upheld the full amount of Ogborn's damages including the $5 million in punitive damages for McDonalds "reprehensible" behavior. Summers's punitive damages award was reduced from $1 million to $400,000 because the court found the jury verdict excessive. Summers also received $100,000 in compensatory damages. She was fired soon after the original incident.

A former Florida prison guard was tried and acquitted for making the phone call.

Related Resources:

Appellate Opinion
Appeals court upholds $6.1 million strip-search verdict against McDonald's (Louisville Journal-Courier)
Ky. court upholds $6M verdict in strip search case (AP)
Sexual Assault (FindLaw)
What Is A Sex Offense? (provided by Law Office of John R. Fielding, Jr. & Associates)
Personal Injury Overview (provided by Colvin Law Firm, APLC)

Show Me the Money! Jerry Brown Gets $1.4 Bil from Wells Fargo

2009-11-20T20:09:31Z

As they used to sing on Broadway, the Wells Fargo wagon is a-coming, and this time it's carrying a little something for investors in its auction-rate securities. California Attorney General, Edmund "Jerry" Brown, Jr., announced today that he has secured a settlement in which Wells will pay investors, charities and small businesses $1.4 billion over the purchase of auction rate securities from Wells subsidiaries based on "misleading advice."

Auction rate securities are investments that, under the Agreement between the Attorney General and the Wells Fargo parties, are "long-term bonds issued by municipalities, corporations and student loan companies, or perpetual equity instruments issued by closed end mutual funds, with variable interest rates that reset through a bidding process known as a Dutch auction." The AG's suit alleged that these Wells Fargo affiliates: Wells Fargo Investments, LLC; Wells Fargo Brokerage services, LLC and Wells Fargo Institutional Securities, LLC misrepresented these investments as a "safe, liquid and cash-like investment."

Further, the suit claims that the Wells companies ignored warnings from the SEC, Big 4 accounting firms and the Financial Accounting Standards Board that auction-rate securities should not be considered "cash equivalents." Of course when the $330 billion market froze in February '08, so did the "cash" owned by all the investors.

Wells is alleged to have failed to inform investors precisely how these complicated securities or the auction process actually worked. They are also charged with not supervising or training their sales staff.

Under the settlement agreement, Wells will buy back $1.4 billion in securities from investors nationwide, including about $700 million from California investors. The process of providing notice to eligible investors starts no later than 90 days from the date of the agreement.

Wells Fargo admits no wrong doing under the terms of the settlement.

Related Resources:

Wells Fargo will repay 1.4 Billion in auction-rate settlement (USA Today)
Office of the California Attorney General News Release
Wells Fargo, State of California Settlement Agreement [pdf]
Business, Banking and Securities (FindLaw)
White Collar Crime FAQ (provided by Frank A. Rubino)
Fraud Overview (provided by Law Offices of Jeffrey S. Freeman)

A Small Bite of the Apple: NY's Narrow Ruling on Gay Marriages

2009-11-20T17:15:53Z

Advocates for same sex marriages won a small victory in the state of New York's Supreme Court on Thursday. The court unanimously rejected the challenge to NY's policies that can recognize benefits stemming from same sex unions legal in other states such as Massachusetts, Connecticut and Vermont.

Those pleased by the ruling aren't popping champagne corks just yet, though. This decision affects a relatively small number of people. The majority opinion stated clearly that the ruling was based on specifics of the cases involved and does not reach the broader question of whether the state as a whole will recognize same-sex marriages performed in other states. Writing for the majority, Judge Eugene F. Pigott, Jr. said, the court hopes the "Legislature will address this controversy."

Who will be positively affected? One case before the court involved the State Department of Civil Service which granted insurance benefits to same sex partners of state and local workers married out of state. Another case involves policies in Weschester County. In 2006, county executive Andrew J. Spano ordered county officials to recognize same-sex unions performed outside the county.

NY Gov. David A. Paterson has made addressing the issue of same sex marriage a priority. He issued an executive order to extend state recognition to same sex couples married in states and other places, such as Canada, where they are legal. The order was challenged as unconstitutional by opponents of same sex marriage. Legislation to allow gay couples to be married in New York is making its way through the State Legislature. It has passed the Assembly, but has not yet come up for a vote in the Senate.

Related Resources:

Court Upholds Recognition of Gay Marriages in Narrow Ruling (NY Times)
Same Sex Marriage: Developments in the Law (FindLaw)
N.Y. Court Upholds Marriage Recognition (The Advocate)
Marriage Overview (provided by Short Law Firm, PC)
Ready or Not? Marriage Test (provided by Bishop Law Office)

Court: Army Corps of Engineers Liable for Katrina Damage

2009-11-19T20:15:19Z

In a decision handed down Wednesday that is being called "groundbreaking," U.S. District Court Judge Stanwood Duval, Jr. found in favor of four plaintiffs and awarded damages totaling $719,00.00 against the U.S. Army Corps of Engineers. The suit was brought over alleged negligence by the Corps in building and maintaining the Mississippi River Gulf Outlet canal, eerily nicknamed "Mr. Go" by New Orleans residents. In the scope of the disaster wrought by Katrina, this award may sound like a mere drop, but the result opens the channel to many more potential claims.

Why did this case reach a final decision in favor of the plaintiffs when so many others failed even to reach the courtroom? According to Judge Duval, New Orleans' levees, designed by the Corps as storm protection, were works protected by the theory of sovereign immunity. Sovereign immunity is a theory which holds that the sovereign (in history a king, now for example, the federal government) is immune to civil or criminal liability. Thus, claims for damages resulting from those levee failures were denied. However, Mr. Go was designed not as storm protection, but as a navigation canal. Thus, the Army Corps of Engineers was not protected by sovreign immunity against suits over Mr. Go, and the plaintiffs claims were allowed a hearing.

As for the defendants, the Army Corp did not fare well under the Judge's ruling. Duval went as far as to accuse them of "insouciance, myopia and shortsightedness... . " This surely must be the the first time in it's over 200 year history that anyone has described the Corps as insouciant.

The Corps tried to defend the maintenance of Mr. Go as decisions based upon "policy judgments of their professional staff, " and therefore protected under federal law. The Judge disagreed. "Ignoring safety and poor engineering are not policy, and clearly the Corps engaged in such activities," he said. The Corps defense also rested on the Act of God theory, claiming that the effect of Katrina was so massive, nothing they could have done would have prevented flooding. This was also unsuccessful.

But what did the plaintiffs actually accomplish here? Each of the four, all from Lower Ninth Ward, received between about $100,000 and $300,000. More importantly, the question now becomes, will this open the doors to successful claims by their neighbors leading to money enough to truly rebuild?

The full effects of this decision will take months or years to comprehend. A certain next step will by an appeal by the Corps to the 5th cir. Ct. of Appeals. Someone will also need to address the 490,000 claims still outstanding.

Related Resources:

Corps' operation of MR-GO doomed homes in St. Bernard, Lower 9th Ward, judge rules (New Orleans Times-Picayune)
Army Corps laible for Katrina damage (Christian Science Monitor)
Special Coverage: Katrina's Legal Aftermath (FindLaw)
Defining Bad Faith Insurance (provided by Lamkin, Van Eman, Trimble, Beals & Dougherty, LLC)

From the Freezer to the Cooler: William Jefferson Gets 13 Years

2009-11-17T20:04:33Z

What began with a history making raid on a congressional office and $90k found in a freezer, ended with a 13 year sentence for ex-Louisiana Congressman William J. Jefferson last Friday. Jefferson was convicted of 11 out of 16 counts of bribery, racketeering and money laundering related to business ventures in Africa. If he had been convicted on all counts, the 62 year old Jefferson could have faced up to 235 years in prison. As it stands, he is in for a comparatively light 13 years in federal prison. While he might get 15% of this time off for good behavior, there is no parole available in the federal sentencing system.

Jefferson's attorney attempted at trial to paint a picture of a man who was in an ethical gray area, but whose acts were not within the purview of "official acts" as a member of Congress, thus not violating the bribery statues. The prosecution saw it differently, depicting Jefferson as a guy who, in the words of Assistant U.S. Attorney Rebeca Bellows, "never let an opportunity to demand a bribe...pass him by." Jefferson plans an appeal.

The raid on Jefferson's home, which resulted in the FBI's find of $90k worth of loot stashed in the freezer, and the following raid on Jefferson's congressional office, set off a block of controversy, finally resulting in the U.S. Supreme Court declaring the raid on the office constitutionally flawed. Members of both parties heartily resented the incursion by the FBI on Congressional turf.

While Jefferson incurred a 13 year sentence for a gain of what prosecutors said was actually less than $400,000, in contrast, former Representative Randy "Duke" Cunningham (R-CA 50th), received a lighter sentence. Cunningham was sentenced in 2006 to eight years for what was then called an "unparalleled in the history of Congress" bout of corruption which garnered him about $2.4 million in homes, yachts and additional goodies. It seems all is not fair -- or at least equal -- in love, war and sentencing under the federal sentencing guidelines.

Related Resouces:

William Jefferson Guilty on 11 of 16 Counts (New Orleans Times-Picayune)
Ex-Louisiana Congressman Sentenced to 13 Years (NY Times)
Disgraced Rep. Cunningham Gets 8 Years (CBS News)
Stages of a Criminal Case: Sentencing (FindLaw)
Classifications of Crimes (provided by Dickman Law Offices, P.S.C.)
Do Longer Sentences Mean Less Crime? (in FAQ) (provided by The Umansky Law Firm)

Down on the Pharm: (Some) Drug Makers Settle Iowa Medicaid Suit

2009-11-17T17:13:30Z

Iowa Attorney General, Tom Miller, announced Friday that Iowa has won a first step in its medicaid lawsuit against big pharma for allegedly over-charging taxpayers for medications. Eight of the 78 drug companies sued by the state have settled for $4.3 million. After lawyers' fees and the federal government has taken its share, Iowa will be left with about $1.2 million, some of which may actually reach it's financially strapped Medicaid program. Iowa's program insures about 422,000 adults and children who are poor, pregnant, blind or disabled.

Iowa's suit, filed in October of 2007, alleges that "these companies... deliberately and unlawfully reported false drug price information in order to increase reimbursements paid by the Iowa Medicaid program and to increase the market share for their own drugs," Attorney General Tom Miller said Friday at a news conference at his office in Des Moines. The DesMoines Resgister also reports the lawsuit specifically alleged that the fraudulent prices claimed by the drug companies exceeded the real prices by "as much as 1,000% between 1992 and 2005."

Now for the bad news. The eight settling companies are among the smallest sued by Iowa. These companies include: Dey, Inc., and with a group including Abbott Laboratories, Inc.; Amgen, Inc.; Baxter International, Inc. (and associated companies); Ben Venue Laboratories, Inc.; Boehringer Ingelheim Roxane, Inc. (and associated companies); Immunex Corp.; and Roxane Laboratories, Inc. The suit continues against the other drug companies not parties to the settlement.

A similar settlement was reported by the state of Washington, joined by a team of states including New Hampshire, Ohio and New York. The Attorney General for Washington, Rob McKenna, announced a $124 million settlement over the classification of drugs by drug companies in a way that reduced the amount owed in rebates to Medicare.

All settling companies in the Iowa suit deny wrongdoing.

Related Resources:

Drug Firms Settle Lawsuit Alleging Inflated Prices (DesMoines Register)
Iowa Attorney General's Office Press Release
Iowa Settles with Eight Drugmakers (LegalNewsline.com)
Criminal Prosecution for Medicare and Medicaid Fraud (provided by Law Offices of Jeffrey C. Grass)

No Leg to Stand on: Birther Berg's Obama Lawsuit Has No Standing

2009-11-16T17:05:53Z

There is an old saying among attorneys: he who represents himself has a fool for a client. A sharper illustration of this adage cannot be found outside Third Circuit Court of Appeals decision handed down last Thursday in the Philip Berg lawsuit, in which yet another "birther" sued regarding President Obama's birthplace and eligibility to serve as President.

Philip Berg, an attorney, represented himself in his appeal (and presumably in the myriad of cases that preceded this one) of the District Court's decision against him in his "birther" suit against President Obama. A "birther" suit is one (of many) lawsuits based on the curious notion that President Obama is not actually a natural born citizen of the United States and thus ineligible to run for the office of president. The Court, in all its wisdom, did not even reach the question of the president's actual or alleged birthplace. They instead ruled against Berg due to a lack of standing to bring the suit.

Standing is the law's way of deciding who is the appropriate party to bring a case to court. Imagine, if this prerequisite did not exist, the courts would be clogged with frivolous and irrelevant suits. Even more than they are now. A complainant is found to have standing if these conditions are met:

he or she has suffered or will, in fact, suffer an injury;
the injury is caused by the complained of conduct of the defendant; and
the injury can be redressed by the court.

In the Philip Berg lawsuit, the court failed to see, among other things, that Berg suffered the necessary injury in fact. As stated by the court, the injury must be a "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." The court goes on to say that when a harm is shared by all or a large class of people say, voters for instance, the harm does not warrant the right to bring the case.

Finally, as for redress for this harm, the court gently asked if he could not redress the harm himself by simply voting for someone else. Maybe he didn't like his options?

The Full Berg v. Obama Opinion (FindLaw)
Who Are the Birthers? (CBS News)
'Birther' attorney rejects $20,000 sanction from judge (Columbus Ledger-Enquirer)
What to Expect - A Lawsuit Chronology (FindLaw)

"Provocative Act" Doctrine Narrowed in California Murder Case

2009-11-13T20:50:38Z

There are a variety of ways someone can be guilty for a murder physically committed by someone else. In addition to being part of a conspiracy, or committing another felony (such as armed robbery) in which a partner kills the victim or a bystander, one of can be guilty of murder under something called the "provocative act" doctrine.

The "provocative act" doctrine applies when someone commits an act that provokes someone into killing someone else. The classic example is an attempted murder in which the victim is provoked into firing a gun in self defense, killing a bystander or an accomplice in the attempted murder.

Last week, the California Supreme Court narrowed the "provocative act" doctrine by making clear that to be guilty of first degree murder, all participants must act willfully, deliberately, and with premeditation.

The facts behind this case are intense. Four men were alleged to have tried to rob a man named Jimmy Lee Harris. Harris used a knife to defend himself against all four and wound up stabbing one of the accomplices to death.

The trial court found the accomplices guilty of first degree murder for their partner's death under the provocative act doctrine.

The defendants appealed. A court of appeals agreed with the trial court, and the defendants appealed again -- this time to the state Supreme Court.

The California Supreme Court sided with the defendants, reversing the appeals court below because at trial, the jury was not instructed that in order to be guilty of first degree murder, each person must have acted willfully, deliberately, and with premeditation. The case will now go back to the appeals court for consideration of whether the botched jury instructions were prejudicial.

What does this case mean practically? If the accomplices in a case like this had no intent to kill anyone, they can't be guilty of murder when the victim takes the life of one of the partners. If they intended to kill the robbery victim, they could be found guilty of murder if instead killing the victim, the victim kills one of them.

To be clear, the accomplices in this case need not have had the intent to kill their own partner. Intent to kill Jimmy Lee Harris would suffice. If they acted with the intent to kill Harris, they can be found guilty of their partner's murder by having provoked Harris into killing him.

As for the more common scenario in which one member of a group committing a felony (such as armed robbery) kills someone -- in those cases, everybody committing the robbery can be guilty of murder under the felony murder rule, even if they did not specifically intend to kill anyone.

Check out our Related Resources for more information.

Related Resources:

The Full People v. Concha Decision (FindLaw)
Provocative Act Murder (Crime and Consequences Blog)
Supreme Court Clarifies 'Provocative Acts' Murder Doctrine (Metropolitan News Enterprise)
Rare murder case brings charges of racism (MSNBC)
Classifications of Crimes (provided by Barnett & Falls)
Criminal Defense FAQ (provided by Randolph L. Goldman)

Tannin, Cioffi Not Guilty: Email Not the Magic Bullet against Fund Managers

2009-11-13T20:24:29Z

The widely reported trial of two former Bear Stearns Co. fund managers ended with a surprise verdict on Thursday: not guilty. Despite our dampened collective mood and the need the country has to find someone or something to blame for the market debacle of last year, this one didn't quite stick. Much to prosecutors' surprise, the email evidence they had counted on to seal the fate of fund managers Matthew Tannin and Ralph Cioffi failed to convince the jury of their guilt. Perhaps it's not only what you say, but how you say it.

Prosecutors evidently relied heavily on email evidence from the defendants from which they quoted excerpts, allegedly showing that the managers knew and discussed privately how unsound their funds were, while spinning a completely different tale to investors. Unlike past cases where email evidence has been a lynchpin to conviction such as Martha Stewart's case or the infamous Arthur Anderson "shredding" email, this time the jury was not entirely convinced. Or, perhaps jurors understood that a mere excerpt does tell the whole story. Reuters reports one juror said simply, "If you put small sentences and you put them together... you could make it say anything."

The government also had a difficult time convincing the jury that the often ambiguous emails, showing defendants going back and forth over the real health of the funds and market, meant what they said it meant. These days, maybe unlike earlier cases, nearly everyone understands the pitfalls of expressionless email. Anyone who has tried to decipher the tone or even true content of a less than clear email from a boss, friend, or an about to be ex-friend, knows how misleading email communications can be.

According to Bloomberg, in October, the government made an additional mistake with their email evidence. Earlier this year, U.S. District Court Judge Frederic Block suppressed one email communication wherein Tannin, stated things could "blow up." Unfortunately for the government, their search warrant request was found to be overly broad and could not encompass that particular missive. Tannin's lawyer argued sucessfully "that the government's subpoena for e-mails was "overly broad" and that this "blow up" e-mail predated the charged conspiracy of 2007 by several months." Due to this prosecutorial misstep, the jury never got to see one email they might have found to be more convincing and less ambiguous than the others presented against Cioffi and Tannin.

Lesson learned: to email or not to email? Thank heavens Shakespeare didn't have to deal with email.

Related Resources:

The Bear Stearns Verdict: A Blow to E-Mail Prosecutions (Time)
Tannin 'Blow Up' E-Mail Won't Be Seen by Fraud Jury (Bloomberg, Oct. 26, 2009)
Jury acquits ex-Bear Stearns hedge fund managers (Reuters)
How the Scapegoats Escaped (NY Times)
White Collar Crime Overview (provided by Bruce H. Fleisher, P.A.)
Fraud (provided by Brent Horst, Attorney at Law & Associates)

Spy vs Spy: Appeals Court Rules against Valerie Plame Wilson

2009-11-13T20:06:39Z

In a ruling by the U.S. Court of Appeals for the Second Circuit regarding first amendment rights on Thursday, outed spy Valerie Plame Wilson received one more "assist" from the government. Upholding the lower court's decision, the Court of Appeals found Ms. Plame would not be allowed to disclose "classified information" in her memoir relating to her pre-2002 service with the CIA.

Plame and her publisher, Simon & Schuster, argued that since the the dates of her pre-2002 employment were not only disclosed by the CIA, but also widely known to the public, that it amounted to infringement on her 1st Amendment right of free speech not to allow her to include that information in her book.

The Court found that despite the fact that most of the free world has knowledge of said "classified information," it is still classified. In fact, this The Court took the status of "classification" of Ms. Plame Wilson's employment so seriously, it felt the need to add in a footnote:

"All references in this opinion to Ms. Wilson's [Plame's] possible pre-2002 Agency affiliation are hypothetical and should not be understood to confirm or deny any information on that subject."

In slightly less convoluted reasoning, the Court also held that Ms. Plame had accepted the CIA's life-long restrictions on her ability to reveal classified information as a necessary condition of her employment and, that even though others did not respect the status of classified information, Wilson's obligation to do so has not changed.

So who is the real winner in this ongoing spy novel? Simon & Schuster. Not only are they Plame's publishers, but they will also be bringing out Dick Cheney's book in 2011. Sign up for your reserved copy now.

Related Resouces:

The Full Wilson v. CIA Court of Appeals Opinion (FindLaw)
Plame Looses Appeal (Reuters)
Second Circuit rules CIA did not infringe ex-agent Plame's free speech rights (Jurist)
22 Things Dick Cheney Can't Recall About the Plame Case (Mother Jones)
First Amendment - Religion and Expression (FindLaw)

AMD vs Intel Settles: Hatfield vs McCoy Is Over; AMD Gets $1.25 Billion

2009-11-12T17:52:58Z

It's all over, including the shouting. The feuding families of Silicon Valley, known to the rest of the world as chip makers Intel and Advanced Micro Devices (AMD), have settled a major suit, announced today. The two companies are known throughout the tech community for their contentious, litigious relationship. The AMD vs Intel battle dates back to at least the 1980's, but who exactly wore the white or black hat, of course, depends on who you ask. Or who you work for.

In a joint press statement, the companies put a hopeful face on the future: "While the relationship between the two companies as been difficult in the past, this agreement ends the legal disputes and enables the companies to focus all of our efforts on product innovation and development."

Also according to the release, the settlement allows both AMD and Intel to attain patent rights stemming from a 5 year cross-licensing agreement and both will dismiss any claims under the previous agreement. Additionally, Intel will shell out $1.25 billion to AMD and perhaps, more importantly, agree to abide by a set of business practice provisions. In turn, AMD will drop all pending litigation in both the U.S. and Japan and all of its regulatory complaints worldwide.

Intel still faces a barrel full of legal challenges both here and abroad. The Washington Post reports New York AG Andrew Cuomo filed an antitrust suit in the U.S. District Court of Delaware on November 4th, claiming Intel engaged in a "systematic campaign of illegal conduct" to restrict competition and disadvantage consumers. Intel also faces a potential complaint from the FTC and is appealing the fine by the European Commission for about 1.44 billion in U.S. dollars.

In practical terms, it will be the consumer, for a change that stands to benefit. Many feel if it weren't for the presence of AMD fighting to stay alive over the past few decades, the price of CPU's (Computer Processing Units) in personal computers, mainly provided by Intel and AMD, would surely be much higher. With luck in the future, AMD might just be able to focus less time on it's legal struggles and more time contending with it's traditional rival as well as evolving competitors in the lab and market place.

Last question: just wondering what the legal team at AMD will be doing for now?

Related Resources:

Intel/AMD Press Release
N.Y. files antitrust lawsuit against Intel (Washinton Post)
Intellectual Property Law Overview (FindLaw)
Commercial Litigation Overview (provided by The Mandel Law Firm)

Shell Settlement: $19.5 Million over Environmental Violations

2009-11-12T13:50:07Z

Shell Oil Co. will have to clean up its act.

The company has agreed to pay $19.5 million to settle claims by California Attorney General Jerry Brown that the it violated state environmental laws.

The settlement requires Shell to improve its storage and monitoring of possible fuel leaks and employee training.

"Shell Oil Company disregarded the state's underground fuel storage and hazardous waste laws, committing hundreds of environmental violations at its gasoline stations across California," Brown said in a statement.

The company denied wrongdoing and said it has been working to resolve the issue since 2006, when Brown's office began its investigation, the San Francisco Chronicle reports.
During a three-year investigation, Brown said his office and the California State Water Resources Control Board inspected more than 1,000 Shell stations.

Hundreds of environmental violations were found statewide. Inspectors found problems with spill alarms, waste storage and disposal, company inspections, record-keeping and emergency plans, officials said.

The settlement requires Shell to take immediate steps to improve. Here's a quick list of the changes the company needs to make.

Implement a "smart" monitoring system with programmable sensors to monitor for fuel leaks and other environmental alarms
Provide annual compliance and emergency response training sessions to employees, contractors, consultants, retailers and operators
Complete a health, safety, security and environmental checklist to monitor, assess and address compliance issues
Maintain an underground storage tank equipment database and checklist

Related Resources:

Brown Wins $19.5 Million Judgment Against Shell Oil Co. for Environmental Violations at its Gas Stations (Office of the California's Attorney General)
Shell Oil paying millions for tank violations (LA Times)
The California Environmental Quality Act (State of California)
Environmental Law News (FindLaw)