I totally agree that the SEC was asleep at the wheel with the whole Madoff thing. But I don’t see this lawsuit succeeding.
After the relentless pounding the Securities and Exchange Commission has received for failing to expose Bernard Madoff's fraud, it was probably only a matter of time before the agency was sued for negligence.
That time came Wednesday, when attorneys at Herrick Feinstein filed a complaint against the government (pdf) in Manhattan federal district court. Herrick represents two of Madoff's victims -- disabled retiree Phyllis Molchatsky and Dr. Steven Schneider -- who lost more than $2.4 million between them.
. . . .
What will be harder is overcoming the defense of sovereign immunity that the government will no doubt raise. Elisofon admitted it would be a "formidable impediment" to the suit, but said he will argue that this case fits within the exception to that doctrine.
My prediction is that the decision throwing the case out will include the words “floodgates of litigation.” As in, “If we allow this suit, we’ll open the floodgates of litigation against the government.” Floodgates. Just you wait.
That’s the allegation made in the following lawsuit:
Oct. 13 (Bloomberg) -- Delta Air Lines Inc. is accused in a lawsuit of using “stolen e-mails” from a consumer group as part of an effort to stem passenger-rights legislation in the U.S. Congress.
Hanni alleges that her e-mail account was hacked starting in 2008 and continuing into this year, according to a news release from the law firm handling her case. An employee of a Delta contractor said in an affidavit he was fired after his company confronted him over e-mails with Hanni. Delta was concerned the information would be used to enact passenger- rights legislation, according to the affidavit.
Hanni’s group, also known as FlyersRights.org, has been spearheading efforts to persuade Congress to pass legislation requiring airlines to let passengers off planes stuck on tarmacs after three hours. Airlines oppose the bill, saying it may worsen delays.
It’s bullshit that they can keep you locked in a plane for three or more hours. I’m curious as to whether anyone has ever filed a false imprisonment lawsuit against an airline for that policy? I would suspect such a lawsuit would be preempted by federal law, though…
Baucus' Finance Committee is scheduled to vote tomorrow on the bill, which includes:
An individual mandate requiring all those without coverage to buy private insurance - in other words, tens of millions of new paying customers for the private insurance companies.
Subsidies for moderate income people to buy insurance.
No meaningful price controls on what insurers can charge in premiums, co-pays, deductibles, co-insurance and other fees.
No meaningful reforms on insurance denials of care recommended by doctors that the insurers don't want to pay for.
You'd think the insurance industry CEOs and lobbyists would be jumping for joy with this massive taxpayer subsidy for the already profit-soaked industry. But you'd be wrong.
If you’d like to know what gives me schadenfreude, look no further than this:"
Now many of the investors are stuck with securities that pay ridiculously low yields. In some cases, the securities will never mature, so the investors will never get their money back unless they sell them for a fraction of what they paid. Those who thought they were being safe and cautious in fact were taking huge risks.
The biggest losers so far are corporations that bought the paper but now find they are not covered by settlements some Wall Street firms made to reimburse individual investors. But there are still individuals who are stuck with the securities, either because their brokerage firm refused to settle or because they moved from one firm to another and found that neither firm was willing to reimburse them.
Some of those corporate purchasers may recall the old saying, “Be careful what you ask for. You might get it.” Those buyers of this paper are finding they cannot successfully sue because of a 1995 law that was strongly backed by corporate America as a way to curb frivolous lawsuits.
Many states have passed a tort “reform” measure that requires injured patients to file a certificate of merit along with a medical malpractice lawsuit. The Washington State Supreme Court has held that law to be unconstitutional:
On Sept. 17, justices found unconstitutional a state law requiring patients, at the initial filing of a lawsuit, to submit a statement from a medical expert certifying that there was a reasonable basis for the allegations. The court unanimously said the certificate-of-merit statute encroached on the court's ability to set its own procedural rules, violating the separation of powers between the Legislature and the judiciary. In particular, the court found that the law conflicted with an existing rule barring additional verification of a case.
My biggest objection to certificate-of-merit laws is that many of them require you to file this certificate of merit before or simultaneously with the lawsuit. This has the effect of shortening the statute of limitations because a plaintiff has to:
Order his or her medical records
Find an expert witness
Hire the expert witness, and pay him or her to review the records
Wait for the expert to submit the certificate
This can easily shave 2 or more months off already-short statutes of limitation.
There aren’t many hard-and-fast rules in the law. One of them has been that truth is an absolute defense to libel, meaning that if I print something unflattering about someone, that person can’t sue me for libel if what I print is true. Journalists especially love having that kind of certainty with respect to what they print. Thankfully, a jury in Massachusetts understands how important that is:
It's the libel case that set free speech advocates reeling: Noonan v. Staples Inc. In February a federal appeals court held that truth is not always an absolute defense to claims of libel -- and kicked the case back to a jury.
Now the people have spoken. Late last week, a Massachusetts jury found that a mass e-mail sent out by Staples about an employee who was fired for violating the company's travel and expense policy was not sent with actual malice.
The jury issued its verdict on Oct. 8, eight months after the 1st U.S. Circuit Court of Appeals kept alive former Staples manager Alan Noonan's lawsuit, which sought to hold Staples liable for the humiliation caused by the e-mail even though the information in the e-mail was true. The court ruled that the e-mail could give rise to a libel claim because it singled him out and humiliated him.
Of course, since I look at everything through a litigation lens, that’s no surprise.
Why wait for a response to an email when you get a quicker answer over instant messaging? Thanks to Facebook, some questions can be answered without asking them. You don't need to ask a friend whether she has left work, if she has updated her public "status" on the site telling the world so. Email, stuck in the era of attachments, seems boring compared to services like Google Wave, currently in test phase, which allows users to share photos by dragging and dropping them from a desktop into a Wave, and to enter comments in near real time.
Most of the hype over e-discovery is a scam. I’ve been on the IT end of it, and I can assure you that it’s not a big deal for a corporation’s IT department to produce every email or document with a certain word in it. I had to do that very task for a 25-30 person financial services firm, and it took me about two hours. I have no idea how I’d go about aggregating every employee’s Facebook, Twitter, LinkedIN, and other social networking profile in such a search. I don’t even have a Google Wave invite, so that’s just another issue to think about for future discovery disputes.
Because you’re an idiot if you think that corporate employees aren’t using third-party services to exchange communications and documents. Some do it specifically to make sure the communications aren’t discoverable. Others do it because their IT policies suck. And still others do it because they’re just workaholics. But the bottom line is that anyone suing a corporation better make sure they go over the personal email/social networking info for all the fact witnesses.
“I was caught in a debt trap,” said Patricia Nelson, a 64-year-old Waukesha, Wis., retired nursing home worker who said she ended up paying $2,700 in interest on a $550 loan from payday lenders.
And why not? After all, it’s not the prosecutor’s ass on the line.
The Illinois Supreme Court has ruled that if a criminal defendant wants a jury with fewer than 12 people and the judge allows it, a state prosecutor can't stop it.
In a unanimous opinion, the court rejected DuPage County State's Attorney Joseph Birkett's request for a writ of mandamus to force DuPage County Circuit Court Judge Peter Dockery to deny a request for a six-person jury made by defendant William Krolik, who is charged with attempted home invasion and armed robbery. The court said that it was an issue best left to the discretion of the trial judge and that the defendant has a right, under Illinois state law, to choose a smaller jury.
"The state has not established that the seating of a 12-person jury is simply a ministerial action allowing it absolute veto power to foreclose a defendant from requesting, and the circuit court from considering, the empaneling of a jury of a lesser number," the Supreme Court said in its Oct. 8 opinion.
One often wonders just what a trial court judge has to do to abuse his or her discretion. In Florida, it turns out that showing “benevolence and compassion” is sufficient.
"Benevolence and compassion" have no place when it comes to setting foreclosure sales, a Florida state appellate court ruled in a stern order.
The 3rd District Court of Appeal judges said they "thoroughly disapprove" of a decision by Miami-Dade Circuit Judge Valerie Manno Schurr to give an extra month to a couple trying to sell their home before a foreclosure sale, Senior Judge Alan R. Schwartz wrote for the panel last week.
She seems to have noticed what the current Court is up to:
WILLIAMSBURG, Va. — Retired Supreme Court justice Sandra Day O'Connor says she regrets that some of her decisions "are being dismantled" by the current Supreme Court.
O'Connor, who generally has avoided questions on the substance of the court under Chief Justice John Roberts, made the observation during a wide-ranging and unusually candid panel discussion over the weekend.
If I were an employer, and the wife of one of the most famous Constitutional law scholars worked for me, I’d make sure not to let her be sexually harassed.
In an e-mail to the Washington legal community in the summer of 2008 to announce that he and wife Kyndra Rotunda had found new jobs in California, professor Ronald Rotunda wrote an eye-catching final line: "We are...pleased to be leaving George Mason University."
Behind that less-than-fond farewell lie accusations of sexual harassment and discrimination and, ultimately, dismay that drove a noted constitutional scholar and his wife to quit their jobs at George Mason University School of Law.
Honestly, if I’m ever given the chance to skip oral argument, I probably will. Why work yourself up into a frenzy to try and distill a complicated issue down to 30 minutes of argument? Appellate judges probably will have decided the case before the argument anyway.
In response to Olson's questions about the value of oral arguments, Thomas said that sometimes they made a difference but rarely did they change votes, and never did they make a difference on a sustained basis.
Of course, the wingnuts will still be convinced that Obama is gonna grab all their guns.
In orders released Wednesday morning by the Supreme Court, the justices granted review in 12 new cases for the fall term, including a major sequel to the D.C. v. Heller Second Amendment decision of 2008. At issue is whether the individual right to bear arms declared in Heller applies -- or is incorporated, to use the legal term -- against state, rather than just federal laws restricting that right. The case, which will likely be argued early next year, is McDonald v. Chicago, a challenge to Chicago's handgun ban. Significantly, the Court did not act on other petitions raising similar issues, including Maloney v. Rice, an incorporation case in which Justice Sonia Sotomayor ruled while on the 2nd U.S. Circuit Court of Appeals. Presumably those cases will await a ruling in the Chicago dispute.
Well, I guess it’s better than just showing up to court and shrugging your shoulders, but this argument doesn’t persuade me.
The prosecutors from U.S. Attorney Patrick Fitzgerald's office on Sept. 18 filed a motion for reconsideration in the case, telling U.S. District Judge Joan Lefkow that the government witness who she determined gave false testimony at the trial actually "was truthful, but inaccurate." When taking into account additional evidence not cited in Lefkow's decision and viewing the case as a whole, no finding of misconduct is justified, the prosecutors argued.
We often hear a lot of complaints about “judicial activism.” Definitions vary, but most would agree that it occurs when a judge or judges substitute their own judgment instead of the law. The Supreme Court’s Iqbal decision is a double dose of judicial activism. First, the Supreme Court ignored decades of existing case law to make new rules. Second, the rules they made invite future judges to subjectively decide whether to dismiss a case without any reference to guiding principles. Perhaps Congress will undo it:
On May 18, the U.S. Supreme Court gave corporate defendants a gift that keeps on giving: the Iqbal decision, which has made it easier than ever for defendants to shut down lawsuits before they get to the costly discovery stage.
Now, four months later, civil rights and consumer groups and trial lawyers are beginning to push back. They met on Sept. 14 in Washington, D.C., to lay plans for a two-pronged battle to undo what they see as a devastating blow to their lifeblood litigation. The campaign will be aimed at Congress as well as the rulemaking process for federal courts. Hearings are being planned for October in the House and the Senate.
"This ruling has threatened to upend the way we have been doing things for a very long time," said John Payton of the NAACP Legal Defense and Educational Fund, which is part of the growing coalition. "The alarm is quite real."
What do those two illnesses have in common? They can both be caused pharmaceutical products.
Tardive Dyskinesia is a movement disorder that particularly affects the face. People who suffer from it can’t control their lips and eyes. It can cause people to make some really awful looking faces. Tardive Dyskinesia is a known side effect of Reglan, or its generic form, Metoclopramide. Reglan is generally prescribed for people who have Gastroesophageal reflux disease. However, usage of Reglan for more than 12 weeks greatly increases your risk of movement disorders such as Tardive Dyskinesia.
If you think you’ve developed a movement disorder from taking Reglan, or PPH from taking Fen Phen or another weight loss drug, email me at justinian at justinian dot US. I’d love to help you find an attorney to help you hold the manufacturer responsible.
Brian Wilson has a great post about the contradictory stance some people have on all of the above.
And while we're on the topic of "socialism," those opposing health care reform have recently begun to argue that the federal govenmnent has no constitutional right to even pass federal health care reforms; rather this whole issue should be left to the states, they chirp. Yet, out of the other corner of their mouths, these same interest groups are DEMANDING intervention of the federal government in passing federal "tort reform" with the principal argument that your individual rights to hold wrongdoers accountable should be limited "for the good of the whole" so that insurance companies can save money and (certainly) pass all those savings on to all of us. Gee, this sounds like...socialism? Government stay out of health care reform, yet pass federal legislation that limits the rights of all Americans? Perhaps the medical interest groups lobbying for these mixed messages should look up the definition of schizophrenia: "a state characterized by the coexistence of contradictory or incompatible elements."
I don’t think he can run the country, but he can run his town hall meetings:
PHOENIX - Sen. John McCain met with an angry crowd at a town-hall meeting about health care reform Wednesday, sometimes having to fight to talk and telling one woman who wouldn't stop yelling that she had to leave.
The Arizona senator hadn't yet opened up the meeting at McCain's central Phoenix church to questions when one audience member continuously yelled over him.
"You're going to have to stop or you're going to have to leave," McCain told the woman. When security guards approached to escort her out, he told her "Goodbye, see ya" to a round of applause.
Note to Dems: When you’re faced with screaming/shouting/disruptive citizens, kick them out. There’s a difference between a spirited discussion and a shouting match. Welcome the former, and refuse to engage in the latter.
Sure, Fox News will accuse you of trying to censor the opposition, but the only way to please Fox would be to resign. So take a page from John McCain and refuse to allow angry asshats to ruin your town hall meetings.
One of the topics that keeps coming up again and again in the health care debate is whether or not we need to change the civil justice system. Many people proposing these changes call it tort reform. Others, like myself, call it tort "reform" or tort deform, because we believe that the these so-called reforms have more to do with protecting profits than reforming anything.
I've put together a website that explains what many of the words mean. For example:
Statute of LimitationsSummary JudgmentDamage Caps
Or, follow this link to learn more about tort reform.
