Flight Attendant Files Lawsuit Against Oprah Winfrey

This article is about a flight attendant named Corrine Gehrls, she was accused of having sex with the pilot while Oprah and her guests where sleeping by two other flight attendants. She and the pilot passed lie detector tests but still lost their job.

The rest of this article is at: http://gabbybabble.celebuzz.com/2009/10/flight-attendant-files-lawsuit-against-oprah-winfrey.html

Yaz Lawsuits Heat Up – Is a Recall on the Horizon?

This article is about the popular birth control pill Yaz and also Yasmin which is made by the same company. Their are lawsuits being filed all over the country, woman are getting blood clots and other serious health problems because they took the pill. It is interesting to me because I know people personally who have taken or still are taking this pill.

The rest of the article is at:http://www.usrecallnews.com/2009/09/yaz-lawsuits-heat-up-is-a-recall-on-the-horizon.html

Wal-Mart lawsuit settled for $49 million

This article is about a class action lawsuit filed against Wal-Mart, it was settled for 49 million. the lawsuit was about Wal-Mart's employment and labor practices. People had disputes with the company over their pay and hours.

The full article is at:http://www.thetandd.com/articles/2009/02/20/news/doc499e405ab4846170750984.txt

Snake Bite Victim Prepares Lawsuit Against Wal-Mart

This article is very disturbing. It is about a man who went to Wal-Mart with his girlfriend and was bitten by a venomous snake. The man was in critical condition because of the bite and a law suit was filed against the store. I know around here the chances of that happening are slim but for people who travel a lot it is kind of scary.

This is the full article:http://wokv.com/localnews/2009/07/snake-bite-victim-prepares-law.html

Pasta Puffery

I found this interesting article regarding puffery. I thought it was very interesting that outlandish claims were actually less likely to result in civil action, as no reasonable person would rely on same. Yet, Canada has a slightly different view, where a 'favorite' label would actually require some kind of verification of a claim, like market share.


A recent decision of the United States Court of Appeal for the 8th Circuit concluded that use of the statement “America’s Favourite Pasta” was not false or misleading advertising on the basis that the statement was simply commercial “puffery.” American Italian Pasta Company sold pasta in association with the Mueller’s brand in the United States. The packaging for various sizes and types of dry pasta contained the statement “America’s Favourite Pasta.” New World Pasta Company claimed that use of the phrase violated the Lanham Act. The Act provides that any person, who in connection with any goods, uses a false or misleading description of fact, or a false or misleading representation of fact, is liable in a civil action to any person who is damaged by such an act. The Court stated that the Act applies to two categories of actionable statements: . Literally false factual commercial claims, and . Literally true or ambiguous factual claims which implicitly convey a false impression. However, a category of a non-actionable statement exists which is popularly known as “puffery.” Puffery exists in two general forms: . Exaggerated statements of bluster or boast upon which no reasonable consumer would rely, and. Vague or highly subjective claims of product superiority, including bald assertions of superiority.Typically, a factual claim can be judged as true or false by empirical verification. To be actionable, a statement must be a specific measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact. Puffery and statements of fact are mutually exclusive. If a statement is a specific, measurable claim or can be reasonably interpreted as being a factual claim (i.e. capable of verification) the statement is one of fact. Conversely, if the statement is not specific and measurable and cannot be reasonably interpreted as providing a benchmark by which the veracity of the statement can be ascertained, the statement will be considered as puffery. By defining puffery in this fashion, advertisers are left with considerable leeway to craft their advertisements, allowing the free market to hold them accountable for their statements, which in turn ensures vigorous competition and protects legitimate commercial speech. When these principles were applied, the Court concluded that the phrase “America’s Favourite Pasta” by itself was not a statement of fact. It was not a specific measurable claim and could not be reasonably interpreted as an objective fact. The phrase was subjective and vague. In Canada, the Competition Act precludes the making of a “representation” that is false and misleading or a statement of product performance or efficacy that is not based on adequate and proper tests. This provision is broader than the U.S. legislation. Canadian cases have given effect to a puffery defence for exaggerated statements on which no reasonable consumer would rely. However, the same cannot be said for claims of product superiority. The result in a case involving “Canada’s Favourite Pasta” could be different unless the advertiser had the largest market share or other objective reasons to substantiate the claim.

http://www.hg.org/articles/article_432.html

EU Drops Antitrust Case Against Microsoft

Microsoft Corp. got an early Christmas present when the European Commission announced Wednesday that it was dropping its antitrust case against the company.

The commission had charged that Microsoft distorted competition by tying Internet Explorer to Windows. European regulators argued that this tying hindered innovation in the market and created artificial incentives for software developers and content providers to design their products or Web sites primarily for Internet Explorer.

To settle the case, Microsoft promises to offer computer makers and Windows users in Europe the ability to install different Web browsers, and to allow them to turn Internet Explorer on or off. Microsoft also committed to making far-reaching interoperability disclosures.

"Millions of European consumers will benefit from this decision by having a free choice about which web browser they use," said EU Competition Commissioner Neelie Kroes in a press release. "Such choice will not only serve to improve people's experience of the Internet now but also act as an incentive for web browser companies to innovate and offer people better browsers in the future."

Microsoft General Counsel Brad Smith in a statement said the company was "pleased with today's decision by the European Commission, which approves a final resolution of several longstanding competition law issues in Europe."


for full article see link: http://www.law.com/jsp/article.jsp?id=1202436380397&EU_Drops_Antitrust_Case_Against_Microsoft

Democrats propose $50B for jobs-boosting projects

The democrats wants to add close to $50 Billion in spending on highways, housing and school repairs in hopes of creating more jobs. I feel that this sounds like a promising plan, however why not have a preliminary test run first with a smaller amount of funds ? It is obvious to everyone that we have been financially extended for some time now, and if the plan fails, we will only be making an already financially straining situation even worse. The bill will most definitely come under scrutiny from Republican party, who feel that February's $787 billion economic stimulus bill has had a minimal effect in boosting the economy and has not been proven effective against preventing the unemployment rate from hitting double digits. The article ends with "all of the money is simply added to the nation's $12.1 trillion debt since the unused bailout funds would otherwise go unspent." When the nation's debt is this astronomically high, why would we risk adding to that, especially when the plan is not a guaranteed sure thing ? There are plenty of other options to boost jobs to consider.

http://finance.yahoo.com/news/Democrats-propose-50B-for-apf-1316281313.html?x=0

Rise in wholesale inflation unlikely to last

The majority of economists believe that the economy is still too weak for the recent price increases to last, and thus they are not worried. This past Tuesday there was a two-day meeting with the Federal Reserve. The purpose of the meeting was to weigh the unexpectedly increased wholesale inflation. The article reveals that the Federal Reserve could be forced to begin raising interest rates sooner than what was initially anticipated, should inflation pressures continue to maintain their consistency. The Federal Reserve has continued to maintain record lows regarding rates in hopes to boost the lackluster economic recovery. And therefore, it is unlikely the Federal Reserve will raise a key rate by the end of their meeting on Wednesday. Regardless of what ends up happening it has been such a nerve-wracking experience for most of us as we are clueless of the end result and what is ahead of us in the near future.

http://finance.yahoo.com/news/Rise-in-wholesale-inflation-apf-571550090.html?x=0

BofA says it will drop arbitration requirement

BOSTON - Bank of America Corp. said Tuesday it has tentatively agreed to drop a clause from its credit card contracts that requires disputes with customers to be handled through binding arbitration rather than through the courts.

See link for full story:

http://www.msnbc.msn.com/id/34436496/ns/business-us_business/

A Short Sale May Not Mean You're Home Free

Given today's economic woes and housing market, many of us have found ourselves in situations where we might have considered a short sale. The article below provides a mix of mildly cautionary tales and interesting considerations regarding second mortgagages and the purpose of the property purchase. I found this very interesting in light of Chapter 14's points.

Financially troubled borrowers may think that foreclosure or a short sale of their home means their mortgage woes are over.
Not necessarily.
Some homeowners are finding that when they sell their homes for less than the outstanding mortgages -- a so-called short sale -- their mortgage companies are going after them for some or all of the difference. Mortgage companies are also sometimes taking legal action to recover unpaid amounts after a foreclosure is completed.
In a growing number of cases, holders of mortgages or home-equity loans are requiring borrowers in short sales to sign a promissory note, which is a written promise to pay back a loan or debt. Real-estate agents and attorneys say they have seen an increase in requests for promissory notes as mortgage companies look to short sales as an alternative to foreclosure.
In many states, lenders have always had the right to pursue former homeowners for unpaid mortgage debt. Yet until recently, most borrowers who ran into trouble were able to refinance or sell their homes and pay off their loans. Now, falling home prices are widening the gap between home values and mortgage balances, and the number of homeowners who can't make their mortgage payments is rising as the economy has weakened. More than 3.8 million homes will be lost in 2009 and 2010 because borrowers can't make their mortgage payments, according to forecasts from Moody's Economy.com.
It's Payback Time
Mortgage companies are sometimes going after unpaid debt after a short sale or foreclosure. Here are some factors they may consider:
How big was the unpaid debt?
Was the property purchased as an investment?
What are the borrower's assets and income?
What is the policy of the investor or mortgage insurer?

Some borrowers are surprised to find themselves on the hook. Jodie Byrd sold her home in the Los Angeles area in a short sale last summer after her husband lost his job and the couple realized they wouldn't be able to make their mortgage payments. The sale price covered the $685,000 mortgage, but their lender, Washington Mutual Co., then began pursuing them for the $21,600 balance on their second mortgage.
Ms. Byrd says a clause in their contract gave Washington Mutual the right to pursue the debt, but adds that her real-estate agent said that wasn't likely to happen. The couple eventually settled the claim for $4,000.
A spokesman for J.P. Morgan Chase & Co., which acquired Washington Mutual last year, says it's the company's policy not to comment on individual cases. Speaking generally, he says, "a short sale may resolve the first mortgage, but the second mortgage ... would be a separate negotiation with the lender or servicer."
Some experts say that mortgage companies may pursue leftover debt, or "deficiencies," in greater numbers as the housing market settles. Lenders are "doing everything possible to work with their borrowers and trying to bring stability back to the lending and real-estate market," says Marc Ben-Ezra, an attorney in Ft. Lauderdale, Fla., who represents mortgage companies in foreclosures. "However, the ability to get a deficiency judgment is a valuable right that I think lenders will pursue aggressively in the future as the market stabilizes."
Not every troubled borrower is hit with such a claim. Often, mortgage companies don't go after borrowers for unpaid amounts either because state laws prohibit or limit such actions or the cost outweighs the potential return. Borrowers subject to a deficiency may also elect to file for bankruptcy in an effort to have the debt discharged.
How a borrower is treated can depend on mortgage company policy, the size of the unpaid debt, whether the borrower has a job or other assets, or whether the home was bought as an investment. "If there isn't a financial hardship ... that's where the investor or mortgage insurer will go after the homeowner for more," says David Knight, a senior vice president at Wells Fargo & Co.'s home-mortgage unit.
A PMI Group Inc. spokesman says the mortgage insurer "primarily target[s] borrowers who are not experiencing hardship -- but those who simply elected to walk away from the property due to its decline in value."
Promissory Notes
Still, the number of short-sale agreements that are made with strings attached is increasing. In the past month and a half, "every short sale I have has had a promissory note or gives the lender the right to collect a deficiency," says Pamela Simmons, an attorney in Soquel, Calif., who represents financially troubled homeowners. Often, the terms are buried in the sale contract, she says.
Regina Rivard, a real-estate consultant in Apollo Beach, Fla., has completed 22 short sales in the past six months. In half of them, the holder of the first or second mortgage required that the borrower sign a promissory note or retained the right to pursue the deficiency. The amounts borrowers were obliged to pay ranged from a few thousand dollars to as much as $100,000, she says.
Going to Court
Other borrowers who have already gone through foreclosure are being taken to court by mortgage companies for unpaid debt, though such actions are still relatively uncommon. In Lee County, Fla., deficiency actions have increased in the past six months, with most filed by holders of second mortgages, says Charlie Green, clerk of Lee County Circuit Court. "The sale of the property was not enough to cover the total amount that was owed on the note or notes," says Mr. Green, who recently began tracking such filings in response to the increase.
Dunstant King, a cab driver in Boston, refinanced his mortgage in 2007, thinking it would save him money. Instead, his payments increased as the economy slowed. In January, Mr. King, who had a $290,400 mortgage and a $72,600 home-equity loan, lost his home to foreclosure. In February, a lawsuit seeking $92,000 was filed in Suffolk County, Mass., Superior Court on behalf of the loan pool that holds the second mortgage, according to court records.
"I don't have the money to pay them," says Mr. King. "Business is really bad." His attorney, David Dineen of Greater Boston Legal Services, says, "We believe Mr. King has legal defenses" to avoid that debt.
A spokesman for Deutsche Bank AG, the trustee for the loan pool, says that the decision to file the lawsuit was made by the mortgage-servicing company, Franklin Credit Management Corp. Franklin executives did not respond to requests for comment.
Blake Brewer, an attorney in Independence, Ohio, is currently representing a borrower who completed a short sale with the approval of his lender, National City Corp. The following year, Mr. Brewer's client was sued for the $65,000 loan balance, plus accrued interest, on his home-equity line of credit. The borrower "fully believed National City understood they weren't going to get paid," says Mr. Brewer.

http://online.wsj.com/article/SB124104990739271023.html

In Gene Patent Case, Company Vows to Fight

May 13, 2009, 5:18 pm
By JOHN SCHWARTZ


Today’s New York Times has a story about a novel lawsuit filed in federal court on Tuesday that challenges the notion that genes can be patented.
The lawsuit (available for download as a .pdf) was filed by a coalition of plaintiffs drawn together by the American Civil Liberties Union, and includes individual cancer patients and large professional organizations of geneticists and pathologists. The thrust of the suit concerns patents issued to a Utah company, Myriad Genetics, having to do with genes associated with an increased risk of breast cancer and ovarian cancer.
Myriad declined to comment yesterday, saying simply that it had not had time to review the complaint in the case. Today, the company’s general counsel, Richard Marsh, provided an general oral statement in response to the filing of the suit.
Mr. Marsh said:
Myriad understands that a lawsuit has been filed that challenges the legality and constitutionality of granting gene patents. However, Myriad has not yet been served in this matter. We intend to vigorously defend our intellectual property rights, if served in the lawsuit.
It is our understanding that the core issue in the complaint revolves around the patenting of genes. Since a landmark U.S. Supreme Court decision in 1980 relating to gene patenting, the U.S. Patent and Trademark Office has granted tens of thousands of genetic and genetic-related patents, which cover a large number of life-saving pharmaceutical and diagnostic products. Myriad’s patent portfolio includes both “genetic” patents and patents on surrounding technologies required for testing.
We have rights to 23 granted U.S. patents which cover a number of important aspects related to the detection of mutations in the BRCA1 and BRCA2 genes. These patents cover not only isolated gene sequences, but also methods of isolating, analyzing and detecting mutations. Myriad strongly believes its patents are valid and enforceable, and will be upheld by the courts.
The statement raised eyebrows at the A.C.L.U., however, where the attorney Christopher A. Hansen noted that the case Mr. Marsh appears to be referring to, Diamond v. Chakrabarty, upholds the decision to grant a patent of an organism that was a human-made: a genetically engineered bacterium, not a naturally occurring DNA sequence. “We are talking about a real apples and oranges situation,” Mr. Hansen said. “Chakrabarty doesn’t change our view one iota,” he said, adding that “it strongly reinforces our view” because the opinion in the case underscores the notion that “laws of nature, physical phenomena, and abstract ideas” lie beyond the patent realm.
This case has, of course, just begun, and many twists and turns can be expected along the way, and predicting the outcome of cases is a fool’s game. For the plaintiffs, this represents a chance to ask the courts for what is essentially a do-over on broad decision about granting gene patents that they believe was mistaken from the start.
Harry Ostrer, director of the human genetics program at the New York University School of Medicine and a plaintiff in the case, said in an interview, “I don’t completely know whether I’m brave or foolhardy on this one,” to go up against long-established patent law with a legal challenge. “When we had a small group of plaintiffs, it felt more foolhardy than brave,” he said. Now, he said, the group of plaintiffs has grown to include organizations that represent more than 100,000 scientists, pathologists and geneticists, and “I think they feel they’re fighting the Spanish Civil War,” and want to have been part of the fight.
When reminded that the Spanish Civil War didn’t go especially well for many members of the Abraham Lincoln Brigade, he laughed and said, “Our guys were deemed heroic by Hemingway.” Perhaps, he said, “some day, people will write novels about the Myriad plaintiffs and how foolhardy they were.”

Chrysler Bankruptcy and Product Liability

May 20, 2009, 12:50 pm
By CHRISTOPHER JENSEN

There are thousands of creditors lined up hoping to get their money from Chrysler as it goes through Chapter 11 bankruptcy. One of them, Jeremy K. Warriner, had his legs amputated after an accident in a Jeep Wrangler.
In 2005, Mr. Warriner, 34, of Indianapolis, was in a crash and fire in a Jeep Wrangler. It meant his legs had to be amputated. In 2007 he sued Chrysler in the Superior Court of Marion County, Ind. He claimed that a design defect in the Wrangler’s body allowed his entrapment and made it easier for a fire in the engine compartment to reach him. Chrysler denied those assertions.
But like other consumers who have filed product-liability or lemon-law suits against Chrysler, Mr. Warriner’s chances of getting a lot of money are poor. Under bankruptcy proceedings, such suits are temporarily frozen and placed among the unsecured creditors.
It is not clear how the bankruptcy court will determine the validity of the suits. One possibility is that they could be returned to their original courts for a decision. Then the litigants with winning or settled cases would return to the bankruptcy court to get their money from whatever is left in the unsecured creditors funds.
Unsecured creditors are way down on the payback scale. At the top are the secured creditors who have collateral and are given preferential treatment when it comes to being paid. Unsecured creditors are owed money — or believe they are owed money — and they typically divide up whatever is left after other debts are paid. Mr. Warriner and other litigants are in the same group with corporations.
“The most likely result is they are going to get chewed up and get little if anything,” said Richard A. Zitrin, who teaches legal ethics at the Hastings College of the Law of the University of California in San Francisco. “They’re being put in a bucket with much more powerful forces, so they are going to be the low people in the pecking order.”
Chrysler owners may not be alone in this. Far more consumers could face similar issues if General Motors — a larger automaker — files for bankruptcy.
Michael Palese, a Chrysler spokesman, said the automaker wants “to maintain good will with our customers, and we’re doing everything within the constructs of the bankruptcy laws to do that.”
But Theodore Eisenberg, a professor of law at Cornell University, said Chrysler could have tried to make it easier on those with pending suits. Chrysler could have asked the court to give those cases a priority among the unsecured creditors, citing the need to maintain good customer relations, he said. That might give the plaintiffs a better chance of recovering funds. Of course, other creditors might object, and the court would have to decide if that was fair, he said.
In addition to consumers who claim they were injured as a result of defects, other consumers who have filed lemon-law suits also have their cases frozen and included among the unsecured creditors.
“Those people are stuck,” said Sergei Lemberg, a Stamford, Conn., lawyer who often handles lemon-law cases.
Mr. Palese said the automaker is working with consumers to resolve lemon-law claims in which suits have not been filed.
How the bankruptcy affects lemon-law cases is a major concern of the International Association of Lemon Law Administrators. Its members run the lemon-law programs in all 50 states. Earlier this month the association sent a letter to the automotive task force, asking if President Obama’s promise that the government would back new-vehicle warranties extends to lemon-law awards. Philip R. Nowicki, the president of the association, said the task force had not replied.
One way to protect all consumers would be for the bankruptcy court to require the new Chrysler to either set aside money to cover claims or require a special insurance policy, said Norman I. Silber, a law professor at Hofstra University, who specializes in consumer law.
Otherwise, there won’t be much money left, according to plaintiffs’ lawyers and consumer advocates.
Larry E. Coben is a lawyer in Scottsdale, Ariz., who represents Mr. Warriner and serves on the court-appointed committee for unsecured creditors in the Chrysler bankruptcy. “We’re talking pennies on the dollar,” he said.
Mr. Warriner said such an award would be a disaster for him. He said he needs the money for future medical bills and to modify his home to make it easier for him to move around. “I just don’t see how it can be right,” he said.
Late Tuesday a motion asking the court to help consumers like Mr. Warriner was filed by consumers groups including the Center for Auto Safety, Consumer Action, Consumers for Auto Reliability and Safety, National Association of Consumer Advocates and Public Citizen.
The groups accused Chrysler of trying to abandon customers with defective vehicles. They asked the judge to have those cases returned to their original courts and to require Chrysler to put aside money or agree to cover any future awards.
“If Chrysler is willing to abandon customers with defective or lemon vehicles, including customers who have been physically injured, one would question why anyone in the market for a new vehicle would buy a car from Chrysler’s successor company, which now aims to leave its prior customers holding the empty bag,” they said.

In New Orleans, Elation Over Katrina Liability Ruling

By CAMPBELL ROBERTSON
Published: November 19, 2009

NEW ORLEANS — Since the first days after Hurricane Katrina, when the streets were still under water, many residents of New Orleans and its surroundings have maintained that the flood that wrecked their lives was the government’s fault, and that the government should pay for it.
On Wednesday night came news that many had hoped for but few had believed would ever actually happen: a federal judge agreed.
“My head is spinning,” said Pam Dashiell, a co-director of the Lower Ninth Ward Sustainability Project and a 20-year resident of the neighborhood. “Maybe things are really breaking for the people.”
The sense of vindication was widespread, but the practical implications were less clear. The morning after Judge Stanwood R. Duval Jr.’s decision that the Army Corps of Engineers’ negligent maintenance of a major navigation channel led to major flooding in the Lower Ninth Ward and the adjacent St. Bernard Parish, a pleasantly startled New Orleans was still trying to decipher what it meant.
Was it an opening for tens of thousands of lawsuits, or a big class-action lawsuit, that could add up to billions of dollars in compensation for residents? Or was it leverage for negotiating a broader, regionwide settlement with the government? Some experts suggested that it was a welcome but ultimately symbolic ruling that could be overturned on appeal.
Charles S. Miller, a spokesman for the Department of Justice, said that the government was still reviewing the decision.
“We have made no decision as to what the government’s next step will be in this matter,” he said in a statement.
But given the potential of liability, legal experts are expecting the government to appeal.
The United States Court of Appeals for the Fifth Circuit in New Orleans, where the case would go, has a record of hostility to plaintiffs in environmental cases, said Oliver Houck, a law professor at Tulane University. But, he said, Judge Duval’s decision is so technical and packed with details — it came with a 33-page appendix of graphs, charts and maps — that there are only a few areas where it would be exposed to a reversal.
“For an appellate court to reverse him on the facts is unthinkable,” Professor Houck said.
In 2008, Judge Duval dismissed a lawsuit arising from drainage canal breaches that flooded much of the city, ruling that a 1928 act gave the corps immunity for damages that came from a flood protection project. But his decision was scathing nonetheless, and he insisted that the government should not be free “from posterity’s judgment concerning its failure to accomplish what was its task.”
Wednesday’s decision was about a different corps project, the Mississippi River-Gulf Outlet, a navigation channel known as MR-GO (pronounced Mister Go). In the 156-page decision, the judge wrote nearly as much about complicated immunity issues as he did in determining that the corps’s negligent maintenance of the channel actually caused the flooding in two areas, including the Lower Ninth Ward.
Lawyers for the corps had raised a variety of immunity shields in addition to the Flood Control Act, and the judge knocked these down one by one. With every one, though, he created a potential opportunity for higher judges to overturn the decision on appeal.
The judge ruled that the corps was liable for damages because, he said, it should have been filing environmental impact statements as the landscape around the channel significantly changed: wetlands had disappeared, levee banks had eroded, and the channel had more than doubled in width.
This is a conclusion of law rather than of fact, experts said, and thus is open territory for appeals judges. When legal opinion is at issue, said Howard J. Bashman, a Pennsylvania lawyer specializing in appellate practice, “the court gets to make up its own mind, without any deference paid to the trial judge in how the law was applied.”
At a Thursday morning news conference, the plaintiffs’ lawyers painted the decision in superlative terms, even comparing it to the victory over the British in the Battle of New Orleans.
The lawyers said they hoped the decision, and the possibility of thousands more cases following, would compel Congress and the Obama administration to agree to some kind of larger settlement for the entire city, like the one for victims of the Sept. 11 attacks.
“It’s time that we stopped litigating and started negotiating,” said Pierce O’Donnell, one of the lead lawyers.
Mr. O’Donnell said that he and the other lawyers had scheduled meetings on Capitol Hill in the coming weeks at which they would push for damage compensation for property owners, billions of dollars to rebuild infrastructure projects, and restoration of the area’s coastal wetlands. They will also demand a widespread overhaul of the Army Corps.
For now, however, much of the city was just enjoying a rare sense of triumph. Friends who were watching the news Wednesday night grabbed for their cellphones. At a coastal planning meeting in St. Bernard Parish, people broke into applause.
Mark Madary, who was on the St. Bernard Parish Council at the time of Hurricane Katrina, had campaigned against MR-GO ever since he heard the forecasts of catastrophe at a sportsmen’s league meeting in 1978. He said he never thought the case would even make it to court, but now expects a regionwide settlement.
“Now that the corps has been thrown over and exposed, it’s their duty,” Mr. Madary said.
Others in New Orleans, a city that has become accustomed to disappointment over four long years, were not as elated.
“It is an answer to something that was obvious from the beginning, and we’re glad we finally got a federal judge to agree with us,” said Robert Green Sr., a resident of the Lower Ninth Ward, who lost his mother and granddaughter in the flooding.
But it was clear that Mr. Green was more interested in talking about a grocery store that could be coming to the neighborhood.
“The lawyers are happy and the people are happy,” Mr. Green said of the decision. “But at the same time, we waited four years. So you deal with the important issues that are right in front of you.”
John Schwartz contributed reporting.

Tobacco firms win partial legal victory in Canada

December 08, 2009: 06:42 PM ET

VANCOUVER, British Columbia (Reuters) - Tobacco makers being sued in Canada over the health risks of smoking won a partial victory Tuesday in their efforts to have the Canadian government share in the potential liability.
A divided British Columbia Court of Appeals panel overturned part of a lower court's ruling that the federal government could not be drawn in as a defendant in two cases over the health costs associated with smoking and the promotion of "light" cigarettes.
The court in two related cases said the government may have to share in any possible liability related to Agriculture Canada's role in the development of strains of tobacco used to make "light" and "mild" cigarettes.
The first case involves British Columbia's attempt to collect damages from several cigarette makers and their international parents for the cost of treating smoking-related diseases.
The second case is a class-action by smokers against Imperial Tobacco, who allege they were mislead into believing that cigarettes labeled "mild" or "light" were safer to smoke than regular cigarettes.
The tobacco industry argues that government should share in any responsibility for damages because they were "partners" in the sale of tobacco by keeping it legal and collecting tax revenue from it.
"The B.C. decision will demonstrate that the government of Canada has known about the risks associated with smoking for decades and that it instigated and promoted the development and sale of lower-tar tobacco products." Imperial Tobacco's vice-president, Donald McCarty, said in a statement.
The rulings, which divided the panel 3 to 2 in both cases, allowed portions of the industry's appeal. The dissenting justices would have rejected the entire appeal.
Several of Canada provinces have sued the industry for billions in damages, but the British Columbia case was the first filed and is being used as the lead case in the courts.
In addition to British American Tobacco's Imperial Tobacco Canada Ltd, the cases involve Rothmans Benson & Hedges Inc, a unit of Philip Morris International and Rothmans Inc, and JTI-Macdonald Corp, owned by Japan Tobacco Inc , but which is itself not named as a defendant. (Reporting by Allan Dowd; editing by Rob Wilson)

A Victim’s Daughter Takes the Cellphone Industry to Court

By MATT RICHTEL
Published: December 6, 2009

Questions about how much the wireless industry knew about the risks of distracted driving are not academic — at least not to Jennifer Smith.
Ms. Smith’s mother was killed last year when her car was hit by a driver talking on his cellphone. Ms. Smith, 35, has sued the companies that provided the driver’s phone and wireless service.
She hopes to prove that the companies should have foreseen the dangers and that they failed to provide adequate warnings.
Legal experts said her lawsuit, currently the only such case and one of only a handful ever filed, faces steep challenges but also raises interesting questions about responsibility for behavior that is a threat to everyone on the road.
“This is a compelling type of legal claim,” said Kenneth A. Bamberger, a professor at the University of California, Berkeley, School of Law. “It deals with the widespread use of a product we now know is involved in significant risk and deals with the ultimate question of who should contribute in minimizing the risk.”
The lawsuit, filed in October, involves a crash in Oklahoma City on Sept. 3, 2008. Ms. Smith’s mother, Linda Doyle, 61, died after her Toyota Rav4 was hit by a Ford pickup driven by Christopher Hill. Mr. Hill, then 20, told the police he was so distracted by a cellphone call that he ran a red light at 45 miles an hour, hitting Ms. Doyle’s car as it crossed in front of him.
Mr. Hill was talking on a Samsung UpStage phone on the Sprint Nextel service. Samsung declined to comment. Sprint Nextel said that it “rejects the claims of negligence” in the suit and that it includes safety messages on packaging and user manuals, on its Web site and in its advertising.
In 2003, a woman in Indiana sued Cingular after getting into an accident with another driver, who was reportedly using a Cingular phone. An Indiana appellate court, affirming a lower court’s decision, dismissed the suit, for reasons that include the unforeseeability of the accident and the absence of a legal relationship between the woman and Cingular. But the court also said that crashes are caused by driver inattention, not by cellphones, adding that drivers often talk on phones without crashing.
Russell Jackson, a lawyer who defends companies in product liability cases and is chairman of the Product Liability Committee of the New York City Bar Association, said Ms. Smith, in her lawsuit, faces a challenge in that consumers generally know it is risky to talk on a phone but do it anyway. As a result, he said, it is fair to assume that drivers like Mr. Hill would have kept talking, even if there had been more warnings.
In fact, Mr. Hill, who pleaded guilty to negligent homicide, a misdemeanor, does not blame the cellphone companies. “It’s our choice if we’re going to talk on the cellphone while driving or walking down the street or in the office,” he said. “The cellphone companies don’t say you should talk on the phone and drive.”
At the same time, Mr. Hill said, he was not aware of the education efforts by wireless companies on distracted driving, like the warnings in his phone manual to focus on the road.
“I never read it,” he said.
Ms. Smith argues that the industry’s success in marketing to drivers is the reason people like Mr. Hill do not change their behavior or pay attention to what she characterizes as faint warnings by the industry.
Of her mother’s death, she said: “They should’ve told people from the beginning there was a real risk, and this would’ve never happened.”

State says auto dealer sought to skirt Mass. Lemon Law

Published: December 13, 2009 12:58 am
By Shawn Regansregan@eagletribune.com

HAVERHILL — Thomas Boover's problems began last summer when he purchased a used Ford truck for $9,000 from Fenway Autopark in Haverhill.
Since then, the Haverhill man's fight to get the owner of the dealership to take back the problem-plagued vehicle and refund his money under the state's Lemon Law has drawn the attention of state officials.
The Massachusetts Office of Consumer Affairs and Business Regulation says Boover's case illustrates how some dealerships in border communities are trying to get around the law that requires Massachusetts dealers to provide written warranties on used-car sales and fix problems or provide refunds in many instances. New Hampshire does not have a similar law.
Although Boover purchased his truck at the dealership on upper Main Street in Haverhill, a salesman from the store made him drive across the New Hampshire line to sign papers for the sale, according to the consumer protection agency.
When Boover tried to return his truck under the Massachusetts Lemon Law, the owner of Fenway Autopark, Robert Kalil, told him the law didn't apply because the vehicle was purchased in New Hampshire. Kalil even claimed his dealership didn't even sell the vehicle.
"It's not first time we've heard of this, especially in border communities," said Jason Lefferts, a spokesman for the Office of Consumer Affairs and Business Regulation. "We want consumers to know about this because we want them to be on guard if a dealer tries to take them over a state line to sign something."
After trying unsuccessfully to get the dealership to fix problems with his truck, Boover contacted the consumer affairs agency for help. An arbiter for the agency heard the case last month and ruled in Boover's favor, ordering that he be given a refund.
But in an interview with The Eagle-Tribune, Kalil denied selling Boover the vehicle.
"They had horrible credit, so I took them to a store in New Hampshire that a friend of mine owns," said Kalil, referring to Rob Waters Suzuki in Plaistow, N.H. "Suzuki is a big store, so it's easier for them to get financing. I hate to bring a customer to another store, but hopefully I can get a little referral, because if I can't get them a loan, I have no customer anyway."
Rob Waters of Rob Waters Suzuki also said it was his dealership that sold Boover the truck. He said he doesn't know why Boover believes he bought the vehicle in Massachusetts, but if that is the case, he agrees Boover's truck should be covered by the Massachusetts Lemon Law.
"I don't know why no one ever told me there was a problem, but I just found out about it last night," Waters said on Friday. "If (Boover) would have come to me about this at any point, I would have fixed the vehicle or I would have bought it back, which is what I always do anyway if a customer is unhappy."
Waters said his dealership is not affiliated with Fenway Autopark, but the Haverhill dealership does occasionally bring potential customers to his dealership in Plaistow. But he said he will have nothing more to do with Kalil, because of the Boover dispute.
"I feel victimized that I'm going to be in the newspaper over something negative that I had nothing to do with," Waters said.
Truck plagued with problems
In testimony from the state's arbitration hearing, Boover said when he signed the purchase agreement for the truck, the paperwork did not include a letterhead identifying the seller. However, he said when he asked for a copy for his records afterward, there was a stamp on it that said "Rob Waters Suzuki, Plaistow, N.H."
Boover visited Fenway Autopark for the first time on June 23. Two weeks later, on July 6, he paid the dealership a $1,500 deposit on the truck.
It was on that day that Boover said he and his mother, Jo Ann Boover, were taken by a Fenway Autopark salesman to an "empty building with no name on it" on Route 125 in Plaistow, N.H. Jo Ann Boover signed for the loan that her son used to buy the truck.
The salesman told the Boovers they had to travel to the New Hampshire location to sign and process insurance papers that were not at the Haverhill dealership, Thomas Boover said.
After signing the insurance papers, the salesman told Boover the truck would be "checked over" and that someone would call him in a few days when it was ready to be picked up. After a series of delays, Boover said he took delivery of the vehicle on July 20.
Almost immediately, the truck's warning light came on. Within days, he said, the brakes were making a hissing sound, the front end was vibrating, the rear end was making loud noises, the exhaust was leaking and the air-conditioning stopped working.
After trying unsuccessfully to get the dealership to fix the problems, Boover contacted the state attorney general's office for help.
An arbiter for the Office of Consumer Affairs and Business Regulation heard the case and ruled in Boover's favor on Oct. 19. The decision says Fenway Autopark must take the truck back and return Boover's money.
At the arbitration hearing, Boover provided several documents to prove that Kalil sold him the truck at his Massachusetts dealership, said Lefferts, the consumer affairs spokesman. Included in Boover's evidence was a copy of a cancelled check paid by Jo Ann Boover to Fenway Autopark. The check was deposited into Fenway Autopark's bank account.
Other documents describe parts that need to be replaced in Boover's truck, including the right front axle shaft, the right front converter, the rear main oil seal, the rear differential bearings and clutch packs, brake rotors and pads for all four wheels, and emergency brakes and cables.
Dealer denies wrongdoing
Kalil, who attended the arbitration hearing, disputed Boover's and his mother's account that they were taken by one of his salesman to "an empty building with no name on it" in New Hampshire to sign papers for the sale.
"They were taken to a $2 million building to buy a car because I couldn't get them financing and I was trying to help them out," Kalil said. "The building was under renovation at the time, so that's why it was mostly empty. But there were several large signs on the property.
"They were there signing papers for a half hour. They signed a bank contract, a purchase and sales agreement, an odometer statement and other paperwork. She (Jo Ann Boover) lied when she told the arbiter she only signed one piece of paper."
Kalil said he lost the case only because he did not bring any paperwork with him to the arbitration hearing.
"How am I going to prove I didn't sell a car?" he asked. "But I guarantee you I'm going to win in court. There's no way a judge is going to say I sold that truck. The arbitrator was a 60-year-old woman who didn't have a clue."
Kalil said he took the $1,500 deposit from the Boovers because "I'm not going to spend all that time and energy helping someone without a deposit."
On Thursday, Kalil said he has no intention of refunding Boover's money and that he has appealed the arbiter's decision to Superior Court.
On Friday, however, Boover's attorney, William Cox, said he was contacted by George Kalil, who co-owns the Fenway Autopark dealship with his brother.
Cox said George Kalil has agreed to take back the truck and repay Jo Ann Boover's loan. Waters, the owner of the Plaistow dealership, said he is actually buying back the truck.
Lefferts, of the Office of Consumer Affairs and Business Regulation, said the case should serve as a warning to other potential buyers.
"When making a big financial decision like buying a car, consumers should feel 100 percent confident and comfortable in their situation," he said. "If something doesn't seem quite right, they should air their concerns or find another dealer."

Sioux Falls woman's lawsuit claims link between talcum powder and ovarian cancer

John Hult • jhult@argusleader.com • December 9, 2009

A Sioux Falls woman is accusing Johnson and Johnson and two mining companies of failing for decades to warn consumers about a link between ovarian cancer and talcum powder.

Deane Berg, 52, applied talc-based body powder to her perineum each day after showering from 1975 to 2007, she says in a federal lawsuit filed last week. She contracted ovarian cancer in 2006.
Berg maintains that talc caused her cancer and that the companies selling the mineral knew there was a risk but failed to warn the public.
“I feel like women have been kept in the dark about a known hazard,” said R. Allen Smith, Berg’s lawyer. “It’s the classic definition of why we need product liability lawsuits.”
Some studies have associated the regular use of talc in the genital area to an increased risk of ovarian cancer. The most recent came in 2008, when a study from Harvard University epidemiologist Margaret Gates suggested women who used the product once a week might increase their risk of contracting the disease by 36 percent. For daily users, the risk jumped by 41 percent.
However, some studies have suggested no association between talc use and ovarian cancer. The American Cancer Society calls the study results inconsistent but advises those with concerns to switch to cornstarch-based powders.
“While the findings aren’t considered fact just yet by the American Cancer Society, studies do cause some concern,” said Charlotte Hofer, South Dakota’s American Cancer Society representative.

Product Liability Lawyers Called in to Address Faulty Medical Equipment Used for Cataract Surgery

December 11, 2009. By LAS Newswire

Tyler, TX: Product liability lawyers in Texas have taken the case of Wayne Bishop, a Tyler resident who claims that the Healon D Opthalmic viscosurgical device (OVD) caused dramatic swelling in his eyes that required corrective surgery.
Bishop was undergoing cataract extraction surgery in late 2008 when the OVD syringe was used. Following the surgery, Bishop's eyes began to swell dangerously – ultimately requiring a corneal transplant and graft surgery five months later, according to the Southeast Texas Record.Two days after Bishop's first procedure, Advanced Medical Optics issued a recall on the OVD syringes, claiming that the elevated levels of endotoxin found to be present on the product could lead to eye inflammation or Toxic Anterior Segment Syndrome in patients undergoing eye surgery.Bishop accuses the manufacturer of negligence for not adequately testing its products or warning physicians of the risks of using the OVD syringes."Safer alternative designs were available that did not involve the use of toxins potentially dangerous to patients and which would be safe, effective and financially viable," states the official complaint, as reported by SETexas.com.

Class Action Arbitration Questioned in High Court

WASHINGTON (CN) - The Supreme Court heard arguments Wednesday over whether an arbitrator, appointed by two clashing companies, can hear a class action brought by one of them even though the arbitration contract is silent on that issue. "The question was whether that silence should be interpreted as a preclusion or a permission," Justice John Paul Stevens said. A second question raised in the hearing was whether the arbitration panel made the right decision in finding that the plaintiff can proceed on a class basis. Animalfeeds, a corporation that sells animal feed internationally, tried to file a class action against a tanker company that it uses to ship its feed, Stolt-Nielsen. It filed in federal court on behalf of all companies that use tankers, but the 2nd Circuit ultimately decided that the matter should be sent to arbitration. But the terms of the arbitration contract did not discuss the question of whether an arbitrator could include other companies in the arbitration process. When the companies asked the mediating panel to determine whether a class action was permitted or precluded, the panel decided that the contract permits a class action. "If you ask whether something permits it, and if it doesn't prohibit it, doesn't it for sure permit it?" Stevens asked of the shipping company's lawyer, implying that a class arbitration would be allowed. Justice Antonin Scalia expressed some agreement. "If the contract is silent, it's up to the court or the arbitrator to decide what that silence means," he said. Justice Ruth Bader Ginsburg noted that Animalfeed had originally intended to bring a class action in court and was diverted by the court to an arbitration. Appearing concerned, she told the shipping company's lawyer that a failure to allow a class action in the arbitration, "is shrinking drastically the dimensions of Animalfeeds' claim." But Chief Justice John Roberts approached from a different angle, noting that the shipping company had not agreed to go into arbitration with other members who join as a class. "I understood the fundamental question before getting arbitration is whether the parties have agreed to arbitrate this dispute with this party," he said. Scalia read from the arbitrator's decision. "The panel is struck by the fact that respondents have been unable to cite any post-Bazzle panels or arbitrators that construed their clauses as prohibiting the class action, he read, then noted, "That's not what they have to find. They must find positively that it permits a class action." Seth Waxman from WilmerHale represented tanker company Stolt-Nielsen and argued that the contract's silence should be interpreted to mean that a class action had not been part of the agreement. "There's no consent," he said. While the case falls under the jurisdiction of maritime law, references to any differences between the law governing this contract and non-maritime contracts were rare. Waxman argued that maritime law relies heavily on "custom and practice," and said that maritime contracts have long been bilateral, suggesting that both parties would have to expressly agree to the terms of the arbitration contract. Animalfeeds counsel Cornelia Pillard, from Georgetown University Law Center, argued that the arbitration panel was correct in deciding that silence should be interpreted to mean that a class action wasn't prohibited from the agreement, adding that if there is doubt, the question is usually handed to the arbitrator. Pillard said judicial review can only correct "gross defects" in the arbitration process, and that the arbitrators simply interpreted the contract, as they were asked. Before the skirmish over class arbitration, Animalfeeds had pointed to what it considered Stolt-Nielsen's unreasonable shipping prices and argued that the company is conspiring to dampen tanker shipping competition in violation of federal anti-trust laws. After the arbitration panel decided to allow the class action, a district court had decided that the arbitrators had neglected the law in allowing the class action. The 2nd Circuit, which had originally sent the case to an arbitrator, reversed the district court, allowing the class action to continue. Justice Sonia Sotomayor was absent from the arguments, with plans to speak in Puerto Rico next week.

Governors side with Ohio over satellite TV tax

Posted: Dec 15, 2009 5:43 AM EST
Posted by Lisa Strawbridge

COLUMBUS, Ohio (AP) - The National Governors Association is getting behind Ohio's effort to maintain a tax on the satellite television industry.
The industry is challenging the tax, which brings the state $44 million a year, in a lawsuit before the Ohio Supreme Court.
The governors association filed a friend of the court brief Monday in support of the state's position.
In the brief, the association said it is interested in the case because it "calls into question the ability of all 50 states to raise revenue."
The satellite TV industry is arguing that subjecting it and not cable competitors to the 5.5 percent sales tax violates interstate commerce rights. The state says the U.S. Supreme Court has consistently held that the Commerce Clause doesn't protect one interstate business from another.

Court to rule on privacy of texting

By Robert BarnesWashington Post Staff Writer Tuesday, December 15, 2009

The Supreme Court will decide whether employees have a reasonable expectation of privacy for the text messages they send on devices owned by their employers.
The case the court accepted Monday involves public employees, but a broadly written decision could hold a blueprint for private-workplace rules in a world in which communication via computers, e-mail and text messages plays a very large role.
A federal appeals court in California decided that a police officer in the city of Ontario had a right to privacy regarding the texts he sent on his department-issued pager, even though his chief discovered that some of them were sexually explicit messages to his girlfriend. That court said the chief's decision to read the messages without a suspicion of wrongdoing on the part of the officer violated Fourth Amendment protections against unreasonable searches.
The ruling, by a panel of the U.S. Court of Appeals for the 9th Circuit, was the first of its kind, and the judges acknowledged that the "recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored."
The case produced a deep divide among the circuit's judges. When the full court decided not to reconsider the decision, a 10-page dissent calling it "contrary to the dictates of reason and common sense" seemed written to interest the Supreme Court in the issue.
Most employers routinely tell their workers that they have no expectation of privacy when it comes to e-mail and other communications that involve company equipment, and the city of Ontario is no different. It says it "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice."
But Jeff Quon, the police officer in the case, said the department sent a different message when it handed out pagers to SWAT team members. The department said that the devices were limited to 25,000 characters each month, but that officers also using them for personal purposes could pay for any overage charges.
When the police chief wondered whether the devices were being used mostly for personal messages, the company that provided the texting service, Arch Wireless, turned over transcripts. They showed that a large portion of Quon's messages were personal and many of them were sexually explicit. According to court documents, a review of one month's use showed that 57 of Quon's 450 messages were business related.
But Quon and three others sued after they learned that their messages had been read.
Judge Kim McLean Wardlaw wrote the circuit court's opinion supporting Quon. She said that the "extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question." But she and two other judges also said the department's informal policy that personal messages were allowed on the devices meant Quon "had a reasonable expectation of privacy in the text messages."
The city told the Supreme Court that the panel had it wrong. "To warrant Fourth Amendment protection, a government employee's expectation of privacy must be one that society is prepared to consider reasonable under the operational realities of the workplace," the city said, echoing the words of the court's previous decision on workplace privacy.
In this case, its brief said, "the SWAT team sergeant failed to comport himself as a reasonable officer would have, and he and the other plaintiffs embarrassed themselves through their lack of restraint in using a city-owned pager for personal and highly private communications. The city of Ontario should not have to pay for that."
Jane McFetridge, a Chicago lawyer who often represents employers in workplace issues, said the issue is "one of increasing importance to employers." Though the case before the court involves government employees, she said, case law in the private workplace often evolves from such decisions.
She said that in the world of laptops, cellphones and BlackBerrys, the line between business and personal communications is often blurred and that employers are tolerant "within the realm of reason."
But often they are under legal obligation to monitor computer use, she said, citing as an example a school district's need to watch for employees who visit child pornography sites. And when employers monitor the computer use of their workers, she said, it is often because of complaints from co-workers.
"It's done when someone thinks they are being taken advantage of," she said.
The case, Ontario v. Quon, will be heard in the spring.

Student-led secular groups protest nativity display in Montville

BY TEHANI SCHNEIDER • GANNETT NEW JERSEY • December 15, 2009

MONTVILLE — Amid claims by student secular groups that the township's holiday display is unconstitutional, township officials said Monday the display will remain for the remainder of the holiday season.
The exterior municipal display, which features a Nativity scene, menorah and five wire reindeer entwined with lights, was recently singled out as a violation of the First Amendment by three secular groups at state colleges.
David Iacoviello, president of the Society of American Youth Secularists, or S.A.Y.S. at William Paterson University, requested the religious icons be removed at a township committee meeting last week.
The committee discussed the matter in closed session with legal counsel and made its decision to keep the display, said township administrator Frank Bastone.
The township, he said, has received a direct protest from Iacoviello's group, but two other secular groups have also decried the religious display.
"I understand their issues. I'm not belittling their issues," Bastone said on Monday. "But at this point, there's been one identified individual on this issue and he's from Old Bridge. The decision was to continue putting up the display as we have in the past. We will always act in the best interests of the municipality.''
Township attorney Bob Oostdyk did not return a call seeking comment on Monday. Iacoviello also did not return an e-mail seeking comment.
The township's display was brought to the attention of the student secular groups after an anonymous Montville resident reached out to Rutgers' Pastafarian group for support, said Jeffrey Cupo, Pastafarian founder at Rutgers New Brunswick. The resident said the township failed to respond to his requests to remove the religious icons from the display, said Cupo.
In response, Cupo alerted both S.A.Y.S. and the Secular Student Alliance at The College of New Jersey, and urged the other groups to ask township officials to take down the display.
Cupo also asked the township to erect a display of the Flying Spaghetti Monster, a satirical noodle god often used by the Pastafarians — a group comprised of atheists, agnostics and freethinkers — to emphasize violations of church and state.
"They shouldn't be using government money that taxpayers paid for to support religion," said Cupo of South Plainfield. "We're just using our satire to fight back."
The identity of the Montville resident who initially reached out to the Pastafarian group could not be determined on Monday. Identified by Cupo only as "Monty," the resident did not return an e-mailed request by the Daily Record seeking comment.
While Cupo acknowledged that the spaghetti monster request was tongue-in-cheek, he said the township's refusal to remove the religious icons from the display will lead to a mounting challenge by the secular groups.
The Pastafarian group, which the senior biology major founded at Rutgers two years ago, has close to 100 members alone.
"We're going to keep up with the e-mails," Cupo said. "Right now, that's the extent of it.''
Michael Tracey, president of the Secular Student Alliance at TCNJ, said in an e-mail Monday that he has ''joined the fight'' nominally as part of a larger coalition of groups that generally work together.
Bastone, however, said Monday he did not recall receiving a request from the Pastafarian group or any other group aside from S.A.Y.S. The administrator said Iacoviello is the only individual who has identified himself as an opponent of the display.
William G. Dressel, executive director of the New Jersey League of Municipalities, said towns statewide are given guidelines to follow regarding holiday displays each year.
The guidelines stem from a 1994 case, where the American Civil Liberties Union challenged Jersey City on First Amendment grounds after officials erected a creche and menorah on city property, Dressel said. A year later, Jersey City added other symbols, representing Kwanzaa, Santa Claus and even Frosty the Snowman to depict the diversity of its residents. The display was ruled by an appeals court to be constitutional.
Since then, the League has issued a letter to all towns each October, which emphasizes contacting municipal counsel over the legality of holiday displays.
The letter states that "secular symbols and messages should not be included merely as an attempt to legitimize the religious aspects. ... they should be at least as prominent as any religious displays."
However, Dressel noted that the inclusion of certain symbols in a holiday display depends on the unique circumstances within a community. The guidelines issued in the letter are not a legal opinion, but intended to inform towns of past litigation involving holiday displays, he said.
"We've had questions over the years, relative to holiday displays and what we have found is that the law is somewhat fluid, or unsettled in this particular area," Dressel said. "I think for guidance, for the mayor and governing body, if the issues come up, it should be forwarded to their attorney to review if there are questions regarding displays — type of displays, location of displays, anything relative to a holiday display."

James Woods Settles Lawsuit Over Brother's Death - ABC News

James Woods Settles Lawsuit Over Brother's Death - ABC News

Shareholder Class Action Suit Seeks To Block 3Com-HP Merger

Networking and security services provider 3Com got hit by a shareholder class action suit seeking to block the $2.7 billion merger agreement with HP that was announced last week. The core allegation: 3Com was sold off too early, for too little.
The plaintiff in this case, New York bankruptcy lawyer David Shaev, filed the action last Thursday in a Delaware Court, claiming the proposed agreement – which involves HP paying stockholders of 3Com $7.90 a share – constitutes a breach of 3Com’s fiduciary duties owed to public shareholders. He argues that 3Com’s directors should have pushed for a higher price.
The complaint, which names the entire company’s board of directors, alleges the defendants are attempting to deceive 3Com shareholders and unfairly deprive them of the true value of their investment in the company.
The acquisition – which was clearly leaked – is currently awaiting approval from regulators as well as 3Com stockholders. The transaction is expected to close in the first half of 2010.
Should the merger indeed be completed without a hitch, the class action will seek damages caused by the alleged breach of fiduciary duties.

HP to Acquire 3Com for $2.7 Billion

PALO ALTO, Calif., and MARLBOROUGH, Mass., Nov. 11, 2009

HP and 3Com Corporation (NASDAQ: COMS) (“3Com”) today announced that they have entered into a definitive agreement under which HP will purchase 3Com, a leading provider of networking switching, routing and security solutions, at a price of $7.90 per share in cash or an enterprise value of approximately $2.7 billion. The terms of the transaction have been approved by the HP and 3Com boards of directors.

This combination will transform the networking industry and underscore HP’s next-generation data center strategy built on the convergence of servers, storage, networking, management, facilities and services. The resulting business outcome will help customers simplify the network, deploy a unique and innovative edge-to-core network fabric for the enterprise and improve IT service delivery capabilities, all delivered with best-in-class price-performance.

“Companies are looking for ways to break free from the business limitations imposed by a networking paradigm that has been dominated by a single vendor,” said Dave Donatelli, executive vice president and general manager, Enterprise Servers and Networking, HP. “By acquiring 3Com, we are accelerating the execution of our Converged Infrastructure strategy and bringing disruptive change to the networking industry. By combining HP ProCurve offerings with 3Com’s extensive set of solutions, we will enable customers to build a next-generation network infrastructure that supports customer needs from the edge of the network to the heart of the data center.”

“Our extensive product line and innovative technology together with HP’s breadth and scale will expand our global opportunity,” said Bob Mao, chief executive officer, 3Com. “3Com’s networking products are based on a modern architecture which has been designed to offer better performance, require less power and eliminate administrative complexity when compared against current network offerings. Our products are enterprise proven and widely deployed in the world’s largest banks, manufacturers, Internet service providers, public utilities and retailers.”

The acquisition of 3Com will dramatically expand HP’s Ethernet switching offerings, add routing solutions and significantly strengthen the company’s position in China – one of the world’s fastest-growing markets – via the H3C offerings. In addition, the combination will add a large and talented research and development team in China that will drive the acceleration of innovations to HP’s networking solutions.

3Com also brings to HP best-of-breed network security capabilities through its TippingPoint portfolio. For the past four years, TippingPoint has been the leader in Gartner’s “Magic Quadrant” in its evaluation of leading network security products. Approximately 30 percent of the Fortune 1000 companies have already deployed TippingPoint intrusion prevention systems.

“We are confident that we can run our entire global business of 300,000-plus employees, including our next-generation data centers, entirely on the new HP networking solutions,” said Randy Mott, executive vice president and chief information officer, HP. “Based on our experience and extensive testing of 3Com’s products, we are planning to undertake a global rollout within HP as soon as possible after the completion of the acquisition.”

Under the terms of the merger agreement, 3Com stockholders will receive $7.90 for each share of 3Com common stock that they hold at the closing of the merger. The acquisition is subject to customary closing conditions, including the receipt of domestic and foreign regulatory approvals and the approval of 3Com’s stockholders. The transaction is expected to close in the first half of calendar 2010.

HP anticipates that the transaction will be slightly dilutive to fiscal 2010 non-GAAP earnings.

App Store Rejections Tied to Third Party Rights Infringements

As an iPhone owner, I have been curious about some of their rejections of applications. Most notably emulators. At what point is the platform responsible for the applications? Or is it merely the approval that leaves them culpable? Unless you are willing to void your warranty, the consumer is locked into approved applications. I am curious if this is more of a strategy to control the marketplace as opposed to worries about being held responsible for content from third parties.


App Store rejections tied to third party rights infringements by Erica Sadun
See update from Apple PR at the bottom of the post. Despite what at least one developer was told, the ebook category is not 'banned from the store.'Apple recently invited a great deal of criticism after it rejected Google's Google Voice application from App Store. At the same time, it pulled third party GV apps leaving their developers without recourse and forced to swallow refund costs that exceeded their initial per-sale earnings. Today Engadget notes Daring Fireball's story of a simple dictionary being censored. Now it looks as if Apple may be targeting the e-book section of App Store.
TUAW has learned that Apple has begun rejecting all e-book submissions because "this category of applications is often used for the purpose of infringing upon third party rights. We have chosen to not publish this type of application to the App Store." At first glance, this policy seems in line with Apple's approach to applications that promise charitable contributions. Apple cannot police the developers and will not allow possibly fraudulent postings on their store. Apple does not want to be in the position of vetting rights claims.
At the same time, Apple has been rejecting applications from content providers who do in fact own the rights to their materials and can prove those rights. A colleague who spoke on the condition of anonymity related that a project he developed for a national content syndicate was rejected without recourse. He still got paid for his work but the application languishes without an outlet.
Apple isn't stopping with content source providers. They're also targeting those who provide media browsing tools. Another developer who built an e-book reader received a recent rejection along the same lines. The application might be used to read copyright infringing books, so Apple will not let it in App Store. In an e-mail, he wrote, "Leaving aside the presumption of innocence, [what] about iTunes and iPod; shouldn't they be banned too? After all many users indeed are using them to listen to the music that is not always legally obtained."
It's obviously premature to assign an external motivation to Apple and TUAW has no evidence whatsoever that Apple is using these rejections to pave its way to a new market. At the same time, the timing of these rejections couldn't be worse. With Apple rumored to enter the e-book market sometime in the winter, this new policy could fly very close to regulatory scrutiny.
Update
Apple wrote to TUAW to clear up the speculation around ebook app approvals. From a representative at Apple:
"We have not stopped approving ebook readers and ebooks in fact we've approved 221 new ebooks to the App Store since 7/30/09. The book category in the App Store lists 6,000 apps and this doesn't cover the full scope since ebooks are included in other categories like medical, reference and education."

http://www.tuaw.com/2009/08/05/app-store-rejections-tied-to-third-party-rights-infringements/

CPSC Links Chinese Drywall to Toxic Fumes

Owners of some 100K homes told to spend more time outdoors

Newser) – Americans who live in homes containing Chinese-made drywall should start spending more time outside in the fresh air, the Consumer Product Safety Commission warned yesterday. The commission's investigators found "a strong association" with the imported drywall and the corrosion of metal and wire in homes, and with raised levels of hydrogen sulfide and formaldehyde, the Washington Post reports.
While the problem is widespread, it likely affects fewer than the 100,000 homes initially believed to be a problem, according to the commission. A CPSC task force is now working on ways to identify contaminated sheets of drywall without tearing down walls. In Florida, source of most of the complaints, some builders are offering to repair homes containing the drywall free of charge.

Exxon Mobil to buy XTO energy in big U.S. gas bet

NEW YORK (Reuters) - Exxon Mobil Corp will buy XTO Energy Inc in an all-stock transaction valued at about $30 billion, in a bid that thrusts the oil giant to the forefront of North America's fast-growing natural gas industry.
With the buy, Exxon, the world's largest publicly traded company, gains a major foothold into North America's newest energy discoveries as it bets on the growth of natural gas expanding its share of the world's largest energy market.
The bid, announced on Monday, spurred expectation of a wave of consolidation in the energy sector as cash-rich companies such as Exxon move to snap up smaller players with attractive assets.
"There will be more of these deals, and it will make the industry more resilient to volatility in natural gas prices," said Fadel Gheit, an analyst at Oppenheimer & Co.
The Select Sector SPDR Energy ETF gained 1.6 percent, Chesapeake Energy Corp jumped 7 percent to $24.70, while Devon Energy Corp rose 5.3 percent to $67.33 in early trading.
The deal is valued at $41 billion, including about $10 billion in XTO debt, and is based on the December 11 closing share prices in the two companies.
Exxon will issue 0.7098 common share for each share of XTO, representing a premium of about 25 percent over XTO's closing price on Friday.
XTO is one of the leading developers of unconventional natural gas resources, such as shale gas, which have emerged as a potentially huge new resource play in North America.
"Natural gas is trading at historical lows. Exxon is making a bullish statement about natgas prospects, and if others agree, you could see more deals like this, but only time will tell," said Tom Schrader, managing director for U.S. Equity Trading at Stifel Nicolaus Capital Markets in Baltimore.
U.S. natural gas prices have been under pressure as inventories of the fuel rose to record high levels, but prices have begun to firm in recent weeks as winter temperatures tap into those stockpiles.
Exxon Mobil's Chief Executive Rex Tillerson said on a conference call the purchase would increase the company's resource base about 10 percent.
He added that the deal did not affect Exxon's plan to invest in Ghana. Exxon has agreed to buy a stake in the giant offshore Jubilee oil field, among the largest oil finds in Africa.
Exxon's shares fell 2.5 percent to $71, while XTO shares jumped 18 percent to $48.95 on the New York Stock Exchange.
JPMorgan advised Exxon Mobil and Barclays Capital Inc , and Jefferies & Company Inc advised XTO.
(Reporting by Matt Daily, with additional reporting by Phil Wahba and Megan Davies in New York, editing by Maureen Bavdek)

Google to produce, sell own "Nexus One" phones: report

LOS ANGELES (Reuters) - Google Inc plans to sell its own cellphone direct to consumers as soon as next year, bypassing wireless operators in a rare strategic move, the Wall Street Journal cited sources as saying on Saturday.
Media
Called the Nexus One and made by smartphone maker HTC, the phone will run on the search giant's Android operating system -- around which Motorola and other cellphone makers have built devices -- and will be sold online, the newspaper cited persons familiar with the matter as saying.
Cellular service will have to be bought separately, it added.
The Internet search leader may be sounding a challenge to wireless carriers such as Sprint and Verizon, as well as smartphone makers like Apple. It marks a departure for the leader in Web advertising, which has rarely sold devices directly to consumers, the newspaper said.
Google's Android phones have won attention in the mobile industry lately, with Motorola and Sony Ericsson choosing to launch it with their new top models.
Analysts say the aim is to gain access to valuable consumer data that can be used to sell ads at premium prices, rather than to make money from direct hardware sales, as companies such as Nokia or Research in Motion do.
Research house IDC estimates the market share for Android operating software rose to 5.4 percent from 4.2 percent in July-September in Western Europe, a key market.
Executives at HTC, the Taiwan-based world's No. 4 smartphone brand, were not available for comment. Google was also not available for comment. Google began sharing a version of the Nexus One with employees in recent days, the newspaper cited its sources as saying.
(Reporting by Edwin Chan; editing by Todd Eastham)

Comcast Confirms NBC Buy

Newser) – Comcast has confirmed its deal to buy a controlling share of NBC Universal from GE to create one of the world's biggest entertainment firms. Comcast will pay $13.75 billion in cash and assets for a 51% stake in NBC, the AP reports. The nation's largest cable TV operator will control the NBC network, Telemundo, dozens of cable channels, and Universal Studios if regulators sign off on the deal.
Antitrust regulators are expected to spend months scrutinizing whether the deal gives Comcast—which already holds a quarter of the American pay-TV market—too much power over the entertainment market. GE chief executive Jeff Immelt says the firm got a good price for NBC and it plans to use the cash "to invest in our high-technology infrastructure businesses at attractive returns."

Zhu Zhu Pet Maker: Get Off Mr. Squiggles!

Newser) – The maker of Zhu Zhu Pets is aggressively defending one of its toy hamsters against claims by a watchdog group that Mr. Squiggles contains unsafe levels of a dangerous chemical. Tests by an independent lab show the toy does not contain dangerous levels of antimony, as claimed by the GoodGuide website. GoodGuide performed its tests using a cheap X-ray, as opposed to the more rigorous tests the government mandates.
In tests performed by a lab hired by Cepia LLC, as well as tests by major retailers, the toys passed, the Washington Post reports. "We are 100% confident that Mr. Squiggles, and all other Zhu Zhu Toys, are safe and compliant with all U.S. and European standards for consumer health and safety in toys," Cepia's CEO said in a statement. The Consumer Product Safety Commission is investigating, reports the St. Louis Post Dispatch, Cepia's hometown paper.

Coke, Costco Bury the Hatchet

Newser) – Coca-Cola and Costco have ironed out a pricing dispute that kept the warehouse chain from restocking its shelves with the soda titan's products for over a month. Coke devotees should be seeing their favorite beverages at the stores soon, Costco CFO Richard Galanti said. "Our sign on shelves—'Until we can provide members with these products at competitive prices, we're not going to sell it' and we're now going to sell it, that's all I have to say at this point," he said.
"We have a long-term relationship with Coca-Cola and are happy to have them on our shelves," Galanti told the Seattle Times. "I know everybody wants to know a little bit more, but that's all you're getting."

Defense Dept. Opposed Anti-Rape Rule for Contractors

Newser) – When 30 Republicans voted against an Al Franken amendment prohibiting defense contractors from forcing their employees to agree not to sue if they’re raped, Jon Stewart and liberals everywhere went ballistic. But those 30 Republicans weren’t alone, the Huffington Post reports; the Defense Department opposed the amendment as well. The DoD sent a message to the Senate opposing the amendment, arguing that it “may not be in a position to know about such things.”
It recommended instead banning all such arrangements on all business dealings within the US. The White House says the DoD overstated its opposition. “We support the intent of the amendment, and we’re working with the conferees to make sure that it is enforceable,” said a spokesman. Republicans gave various reasons for their own opposition. Thad Cochran said the government shouldn’t dictate private contract terms, while John Thune said he might support the amendment if it only covered rape, rather than other sexual abuse.

Christmas Tree Sales

The article suggests that Christmas Tree sales are a good predictor of the strength of the upcoming holiday shopping season. And if that's the case there will be a minimal increase this year. This suggested increase would be a definite step up from last year's holiday shopping season, which had the steepest drop in holiday shopping since the 1930s. This year has been much better than the year before, in which the sales of Christmas trees fell 10%. Customers have been gravitating towards shorter, less pricey trees and the price of trees has been on a steady decline falling to $36.50 in 2008. Fake tree sales did worse, with 1/3 less in sales from the prior year's sales.

Court Finds Personal E-Mail Privileged Even if Sent From Work

Tresa Baldas12-14-2009

A federal prosecutor has won his fight to conceal e-mails he sent to his attorney over the government's computers, contradicting a popular belief that employees have no expectation of privacy on work computers.
The U.S. District Court for the District of Columbia ruled on Thursday that Assistant U.S. Attorney Jonathan Tukel had a reasonable expectation of privacy in those e-mails because federal prosecutors were allowed to use work e-mail for personal matters. Therefore, Tukel's messages to his private lawyer sent from work are covered by the attorney-client privilege and can remain confidential.
The party trying to get the e-mails is former federal prosecutor Richard Convertino, who lost his job after his convictions in a high-profile terrorism trial in Detroit were overturned in 2004 due to prosecutorial misconduct. Convertino, who believes he was retaliated against for blowing the whistle on incompetence in the Bush administration's war on terror, is trying to find out who leaked confidential information about an investigation into his conduct to the Detroit Free Press.
Convertino believes Tukel's e-mails to his lawyer may shed some light on the matter.
According to court documents, Tukel was the prosecutor in Detroit who reviewed Convertino's cases, and he was "one of the original parties that initiated confidential personal matters" related to Convertino.
Tukel has denied in an affidavit that he's the source of the leak. But Convertino still wants the e-mails. He argued that Tukel had no privacy expectations in e-mails sent over a government computer.
The court disagreed.
"The DOJ maintains a policy that does not ban personal use of the company email. Although the DOJ does have access to personal emails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving emails sent from his account. Because his expectations were reasonable, Mr. Tukel's private emails will remain protected by the attorney-client privilege," wrote Chief Judge Royce Lamberth.
Tukel's lawyer, James K. Robinson, a partner in the Washington office of Cadwalader, Wickersham & Taft, said the judge got it right -- "Where someone who uses their company e-mail, whether with the Justice Department or someone else, intends the communication to be confidential and takes reasonable steps to ensure the confidentiality ... there is no waiver of the attorney-client privilege."
Robinson said the judge also recognized that in many instances, work e-mail is the only e-mail people have. "It's one thing if the employer has a rigid rule that says you can never use your e-mail for anything personal, but most employers don't," he said.
Convertino's lawyer, Stephen M. Kohn of Washington's Kohn, Kohn & Colapinto, was unavailable for comment
Plaintiffs lawyers see the ruling as a boost for employees, both federal and private. "We've had to constantly warn our clients, 'Don't email me,'" said Debra D'Agostino of the Washington office of Tully Rinckey, who represents federal employees in workplace disputes. "And there have been a number of times where I get an e-mail from a client and I say, 'Goodness, opposing counsel is going to grab this and use it.'"
"The fact that we have clarity now is a very good thing," she said.
This article first appeared on The BLT: The Blog of Legal Times.

A Paid Escort Is a 'Date' Under Domestic Violence Act, N.J. Court Rules

Michael Booth12-14-2009

Paying for another's companionship can be a form of "dating" that triggers statutory protections against domestic violence, an appeals court ruled in a case of first impression in New Jersey.
The state's Appellate Division on Thursday upheld an Essex County judge's final restraining order against a men's club patron who made terroristic threats against a dancer to whom he regularly advanced funds.
Despite the man's claims that the relationship was purely "professional," the appeals court found no support for the argument that a socializing with a paid escort does not amount to a "dating relationship" under the state's Prevention of Domestic Violence Act.
The Act, N.J.S.A. 2C:25-17 to -35, says a judge can enter a final restraining order for "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship," but "dating relationship" has been left for the courts to define on a case-by-case basis.
"Considering the Act's intended broad scope, we reject the contention that a relationship which includes a payment of consideration for the other's time precludes the finding of a dating relationship," Judge Clarkson Fisher Jr. wrote in J.S. v. J.F., A-2552-08.
"Experience suggests that most claims of a dating relationship turn on what the particular parties would view as a 'date,'" wrote Fisher, joined by Judges Francine Axelrad and Marianne Espinosa. "Accordingly, ... courts should vigilantly guard against a slavish adherence to any formula that does not consider the parties' own understanding of their relationship as colored by socio-economic and generational influences."
Plaintiff J.S. and defendant J.F. went out together on several occasions and he even took her to his parents' house one year for Thanksgiving. However, when she began to see another man, J.F. allegedly began sending her text messages threatening physical violence and warnings that he would seek to have her deported to her native country, Brazil.
J.S. filed a domestic violence complaint and obtained a temporary restraining order. Eight days later, Essex County Superior Court Judge Michelle Hollar-Gregory conducted a hearing, at which J.S. appeared pro se and J.F. was represented by counsel.
J.S. testified that she and J.F. were in a boyfriend-girlfriend relationship, though most of their "dates" were at the various clubs where she danced.
J.F.'s attorney attempted to show, during direct examination, that J.S. was nothing more than a paid escort, but the defendant's testimony was inconsistent, the appeals court noted. "[D]espite his attempts to disparage plaintiff by asserting their relationship was 'professional,' defendant testified that his tendering of money to plaintiff was meant 'to help her out financially' and not necessarily in exchange for her time," Fisher said.
When Hollar-Gregory asked J.F. whether the payments occurred "during the time you were dating," he "responded in the affirmative without qualification," Fisher added.
The appeals court found that Hollar-Gregory was "entitled to find from this testimony that the parties had a dating relationship that ended shortly before defendant's harassing and threatening communications that formed the basis for this domestic violence action."
The appeals court declined to follow in lockstep the one N.J. precedent that deals with defining a dating relationship. In Andrews v. Rutherford, 363 N.J. Super. 252 (Ch. Div. 2003), Burlington County Superior Court Judge Michael Hogan said judges should consider.
Whether there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization.
• How long the alleged dating activities continue prior to the acts of domestic violence alleged.
• The nature and frequency of the parties' interactions.
• The parties' ongoing expectations with respect to the relationship.
• Whether the parties demonstrated an affirmation of their relationship before others by statement or conduct.
• Any other reasons unique to the case that support or detract from a finding that a "dating relationship" existed.
Fisher said that while those guidelines are helpful, the principles underlying the Prevention of Domestic Violence Act "would not be served by a cramped interpretation of what constitutes a dating relationship."
J.S.'s attorney, Newark solo Stelio Papadopoulo, says only that "the Appellate Division reached the correct decision in this case."
J.F.'s attorney, Jennifer Marshall, of Jack Venturi's firm in New Brunswick, N.J. says the ruling opens the door to a much wider number of relationships in which the domestic violence act can come into play. She says there has been no decision on whether to appeal to the state Supreme Court.