Why the Supreme Court Is Likely to Rule for Gay Marriage

Time; March 25, 2013

The Supreme Court hears arguments in two historic cases about whether same-sex couples have the right to marry. It is always difficult to predict Supreme Court rulings, but there is good reason to expect some kind of victory for marriage equality. The main reason: Justice Anthony Kennedy, the man who is likely to cast the deciding vote.

The court is considering challenges to the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, and Proposition 8, the California ballot initiative that bans same-sex marriage in that state. These challenges are historic: though state and federal courts from Alaska to New Jersey have considered same-sex marriage, the Supreme Court has never heard a case about it.

(MORE: Why Republicans Are Saying “I Do” to Gay Marriage)

The Supreme Court is known for its sharp partisan divide. The four-Justice liberal bloc is likely to be sympathetic to gay marriage, while the four-Justice conservative camp is likely to be hostile — though how Chief Justice John Roberts will come out is far from certain. In the middle is the court’s usual swing Justice, Justice Kennedy, who has — surprisingly — been the court’s most steadfast supporter of gay rights.

A Reagan appointee, Justice Kennedy is no liberal, as he has shown on issues from affirmative action to corporate campaign spending. But he has repeatedly sided with gay litigants before the court. In 1996, early in the gay-rights legal revolution, he wrote the majority opinion in Romer v. Evans, striking down a Colorado constitutional amendment that prevented localities from passing laws protecting gay people from discrimination. In 2003, he wrote the landmark ruling Lawrence v. Texas, which struck down Texas’ law against gay sex.

(MORE: What Will Justice Kennedy Do?)

It is not clear why Justice Kennedy — who has not been a particular friend of racial minorities in civil rights cases — has been so sympathetic to gay rights. One factor could be that, as a law professor told the Los Angeles Times, he is a “California Establishment Republican” who has traveled “in circles where he has met and likes lots of gay people.” A new Pew Research poll found that the biggest factor in changing people’s minds in favor of gay marriage is knowing a gay person.

Or it could be other factors: people have all sorts of reasons for the beliefs they hold. What matters is that in Justice Kennedy’s case, the sympathy for equal rights for gay people seems both sincere and deeply held. In his 2003 opinion striking down Texas’ sodomy law, Justice Kennedy not only said that the court’s 1986 ruling upholding a similar Georgia law was wrong — he insisted that its “continuance as a precedent demeans the lives of homosexual persons.”
Read more: https://ideas.time.com/2013/03/25/why-the-supreme-court-is-likely-to-rule-for-gay-marriage/#ixzz2OeVMc2LF


Suit Offers a Peek at the Practice of Inflating a Legal Bill

New York Times; March 25, 2013

They were lawyers at the world’s largest law firm, trading casual e-mails about a client’s case. One made a sarcastic joke about how the bill was running way over budget. Another described a colleague’s approach to the assignment as “churn that bill, baby!”

The e-mails, which emerged in a court filing late last week, provide a window into the thorny issue of law firm billing. The documents are likely to reinforce a perception held by many corporate clients — and the public — that law firms inflate bills by performing superfluous tasks and overstaffing assignments.

The internal correspondence of the law firm, DLA Piper, was disclosed in a fee dispute between the law firm and Adam H. Victor, an energy industry executive. After DLA Piper sued Mr. Victor for $675,000 in unpaid legal bills, Mr. Victor filed a counterclaim, accusing the law firm of a “sweeping practice of overbilling.”

Mr. Victor’s feud with DLA Piper began after he retained the firm in April 2010 to prepare a bankruptcy filing for one of his companies. A month after the filing, a lawyer at the firm warned colleagues that the businessman’s bill was mounting.

“I hear we are already 200k over our estimate — that’s Team DLA Piper!” wrote Erich P. Eisenegger, a lawyer at the firm.

Another DLA Piper lawyer, Christopher Thomson, replied, noting that a third colleague, Vincent J. Roldan, had been enlisted to work on the matter.

“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” Mr. Thomson wrote. “That bill shall know no limits.”

A DLA Piper spokesman said the firm did not comment on pending litigation.

To read the complete article, please click the link below:


Is Law School Worth the Cost?

ChicagoNow; March 25, 2013

By Michael Helfand

I was fortunate enough not to have to pay for all of law school, but even with that I ended up with around $20,000 in student loans which was one year’s worth of tuition. This was in 1997.

That same education now costs around $50,000 a year and of course does not include living expenses or housing. It’s not uncommon for a law student to graduate and have $150,000 in law school debt, plus a lot more from college. The average starting salary is $60,000 which isn’t chump change, but certainly not enough to pay off your debt.

So the question is, is going to law school worth the cost?

It seems to be that the answer for most people is that it’s less and less worth it every day. Law school applications are down as much as 40% at some schools and almost every school is down some amount. Part of this is the economy bouncing back, but it also has to do with the high cost and the fact that most law students either don’t finish school or stop practicing traditional law after they graduate.

Schools are getting nervous. A friend of mine who is an author and baseball agent as well as law school graduate was flown back to his school as part of a presentation on all of the wonderful things that a law degree can do. I don’t think they realized that his law license is no longer active because he doesn’t use it or need it.

The State Bar Association is putting pressure on schools to justify their costs. They have no real enforcement power, but it’s a pain for the schools to deal with none the less.

I’ve wondered why UIC doesn’t open up a law school in Chicago. They could cut the market in terms of prices and probably provide the exact same education.

Being a lawyer has for the most part worked out for me and many people that I know. But it’s really shocking how many students from my first year class are not attorneys today. Two of the brightest ones I knew graduated, passed the bar and then became stay at home moms. If you want to do that today, you better be a trust fund baby or marry rich.

Back in the day, you could go to law school because you didn’t know what you want to do next. Having a law degree was seen as something that could open other doors. That’s still true today, but the cost if you end up hating it is so high that you better be sure becoming a lawyer is right for you.


Antitrust Plaintiffs’ Lawyers Sanctioned in Merger Case

Thomson Reuters; March 25, 2013

(Reuters) - Joseph Alioto, a prominent plaintiffs' antitrust attorney in San Francisco, has been ordered to pay attorneys' fees for defendants in a merger case, a rare reprimand that has fueled a debate over the merits of private litigation.

The 9th U.S. Circuit Court of Appeals on Thursday ordered Alioto and the Alioto Law Firm to pay defendants $67,495 in a case challenging the 2011 merger between Southwest Airlines Co and AirTran Holdings Inc. The court had previously granted a motion for sanctions filed against Alioto for what the airlines argued was "unreasonable and vexatious" litigation.

"That almost never happens," said Robert Lande, a professor at the University of Baltimore School of Law. "It's routinely asked for but rarely granted."

Alioto did not return a call seeking comment.

The case is notable further because of the debate it set off about the value of private antitrust lawsuits challenging mergers and whether the order would deter other plaintiffs' lawyers from bringing such cases. It also provided a peek into the fees generated by Skadden, Arps, Slate, Meagher & Flom, which represented the airlines.

Alioto, who is the son of a former San Francisco mayor, first brought the case on behalf of passengers on May 3, 2011, alleging the deal would hurt consumers. The lawsuit sought a temporary restraining order to prevent the merger from going through. Southwest and AirTran had closed the merger the day before, less than a week after receiving clearance from the U.S. Department of Justice.

After the district court dismissed the case, Alioto further pursued it by filing an emergency motion with the 9th Circuit seeking an order forcing Southwest and AirTran to keep their assets separate. The motion was denied on June 2, 2011.

In their subsequent motion for sanctions, the defendants called into question similar lawsuits filed by Alioto contesting mergers.

"Counsel's modus operandi in these cases is to sue companies that are attempting to complete high profile mergers at the most time-sensitive stage of the transaction in hopes of extracting a cash settlement that does not benefit (and indeed ultimately increases the costs to) the public at large," lawyers for the defendants wrote.


In the Southwest case, the defendants said, Alioto had "sunk to a new low" by bringing a case the day after the deal had closed and then by later filing an emergency appeal that had sought broader relief than the original complaint.

Alioto argued in response that the lawsuits criticized by the defendants were "fully and completely justified" and that the appeal to the 9th Circuit was necessary to prevent the "alleged, unlawful, technically consummated merger."

Alioto received support from one judge on the 9th Circuit. When the panel refused to rehear arguments on the sanction motion, Judge Ronald Gould dissented.

Gould wrote that the "requisite degree of recklessness of plaintiffs or their counsel has not been shown, and the sanctions award may incorrectly discourage vigorous private prosecution of antitrust law claims that is beneficial to the public."

The 9th Circuit's attorneys' fee order was first issued on March 5, 2013, and it held Alioto, his firm and three other attorneys at his firm jointly and severally liable for payment.

On Thursday, the 9th Circuit amended its order to make only Alioto and his law firm responsible for paying the attorneys' fees. The change followed a stipulation filed by both sides that the other lawyers should not be included in the order.

In its order, the 9th Circuit did not grant all of the fees that Southwest had sought for work opposing Alioto's appeal. Skadden Arps submitted a request for around $82,000 for 126.5 hours of work by six attorneys and one paralegal. Among the top billers in the group were partner Steven Sunshine whose rate was listed at $986 an hour and Gary MacDonald at $927 an hour.

The 9th Circuit found some of Skadden's request unreasonable. For example, it disallowed $1,125.60 in fees incurred by an associate for traveling from Palo Alto to San Francisco to attend "oral argument in an unrelated appeal." The court noted that an audio recording of the argument was available to the associate the next day.

Skadden Arps declined to comment.

The case is Taleff v. Southwest Airlines Co, 9th U.S. Circuit Court of Appeals, No. 11-16173.

For Taleff: Joseph Alioto of the Alioto Law Firm.

For Defendants: Steven Sunshine, Gary MacDonald and Sara Bensley of Skadden, Arps, Slate, Meagher & Flom.


Justices Signal Uncertainty on Drug Settlements

Thomson Reuters; March 25, 2013

WASHINGTON (Reuters) - U.S. Supreme Court justices on Monday signaled uncertainty over how they would rule on whether brand-name drug companies can settle patent litigation with generic rivals by making deals to keep cheaper products off the market.

Eight justices, lacking the recused Justice Samuel Alito, asked questions that indicated concerns about such deals, but several seemed unsure how courts should approach the matter.

In the deals in question, brand name manufacturers settle litigation by paying generic manufacturers to stay out of the market for a specified period.

U.S. and state regulators say the practice costs consumers, insurers and government billions of dollars annually.

The Federal Trade Commission, which has called the deals "pay for delay," has fought them in court for more than a decade.

A number of justices on Monday appeared skeptical of the Justice Department's argument that the deals should be viewed as presumptively unlawful.

Justice Sonia Sotomayor said she had "difficulty understanding" Justice Department lawyer Malcolm Stewart's argument that "the mere existence" of a payment should change the way courts view a settlement.

But several justices asked questions raising concerns that the deals could be anticompetitive.

Justice Elena Kagan said that in some cases, companies could share monopoly profits "to the detriment of consumers."

The problem the court appears to face is how to tell lower courts to determine which agreements were lawful and which were not.

Justice Stephen Breyer suggested that the justices should simply tell lower court judges to "keep in mind" that the deals could be anticompetitive.

"In other words, it's up to the district court," he said.

It is unclear how many of the justices would support that approach. Justice Antonin Scalia was openly critical, saying it would not tackle "the elephant in the room," which is the relative strength of the patent being challenged in the case. Justice Anthony Kennedy voiced similar sentiments.

In the case before the court, Solvay Pharmaceuticals Inc, which is now owned by AbbVie, sued generic drugmakers in 2003 to stop cheaper versions of AndroGel, a gel used to treat men with low testosterone.

Solvay paid as much as $30 million annually to Actavis Inc predecessor Watson Pharmaceuticals, Paddock Laboratories Inc and Par Pharmaceutical Cos to help preserve annual profits estimated at $125 million from AndroGel.

Under the deal, the three would stay off the market until 2015. The patent expires in 2020.

The Supreme Court is expected to issue a decision by the end of June.

The case is Federal Trade Commission v. Watson Pharmaceuticals Inc et al, U.S. Supreme Court, No. 12-416.


Best Lawyer Lead Gen Yet: Advertise Next to Your Mugshot

Lawyersandsettlements.com; March 22, 2013

Why try to brush that bad rap under the carpet when you can capitalize on it—by serving ads for your law firm up to it!

Well, it probably wasn’t the intent of Florida attorney Thomas Lewis Edwards. Heck, he had nothing to do with it really—just a matter of whatever ad company he’s using serving up ads based on web searches for his name.

See, Edwards had the misfortune of being criminally charged with drunk driving and allegedly involved in a hit-and-run accident. Not usually good PR for an attorney. (Note: Edwards is criminal defense attorney.) And, after he posed for the in-house photographer—styled in emerald green stripes (a look that not everyone can pull off, mind you), his mugshot made it online.

From there, thanks to the logic built into the ad server, voila—the ad for his law firm appeared right next to his mugshot. Needless to say, once picked up by Gawker, Reddit and ABA Journal, it went viral. Talk about an endorsement!

The one who’s not mentioned in this but who sort of reaps some collateral damage out of it is Edwards’ partner, Geoffrey Mason. Guessing there were a couple of awkward moments and closed-door sessions at the firm once the screenshot went viral.

According to the Gainesville Sun, upon being asked about the irony of the situation, Mason took in stride and replied, “It is what it is.”

Yeah, it is.


FDA Opens Investigation into Januvia and Pancreatitis

Lawyersandsettlements.com; March 25, 2013

Washington, DC: Reports of pancreatitis associated with type 2 diabetes medications, including Merck’s Januvia and Bristol-Myers Squibb’s Byetta and Bydureon, have prompted the Food and Drug Administration (FDA) to begin a safety review.

In a recent statement, the FDA said they are “evaluating unpublished new findings by a group of academic researchers that suggest an increased risk of pancreatitis, or inflammation of the pancreas, and pre-cancerous cellular changes called pancreatic duct metaplasia in patients with type 2 diabetes treated with a class of drugs called incretin mimetics."

The FDA review is prompted by both new evidence and older reports of adverse events linked with the drugs. In February 2013, researchers at Johns Hopkins published a study in JAMA Internal Medicine, (2/25/13), that showed people taking Byetta, Bydureon or Januvia had double the rate of acute pancreatitis.

Doctor Edwin A. M. Gale, professor of diabetes medicine at Southmead Hospital in England commented on those data in the British Medical Journal, saying, “Should we be worried about this? Very much so. All forms of pancreatitis, clinical or subclinical, predispose to carcinoma of the pancreas.” He added that the number of reports of pancreatitis associated with the new generation type 2 diabetes medications that have been received by the FDA have reached “astronomical proportions.”

The JAMA study found that patients hospitalized with pancreatitis were two times more likely to be taking either Januvia or Byetta than diabetic patients who did not have pancreatitis. The study concerned Consumer Reports (3/5/13) enough that it issued an article warning patients to talk to their doctor about switching to another medication.


Fracking Lawsuits Filed by Those For and Against It

Lawyersandsettlements.com; March 24, 2013

Albany, NY: Fracking lawsuits are being filed by people in favor of the activity and those who are against it. Those who are in favor of fracking say towns do not have the right to restrict or ban oil and gas development, while those who are against it say fracking procedures are harmful to the environment and could cause health problems.

BC News (3/21/13) reports that lawsuits have been filed to challenge laws that ban fracking. One lawsuit was reportedly filed by a dairy farmer, who says because of the ban, she is losing money that she could have made from wells planned for her acreage. The lawsuits allege that local regulations conflict with state regulations, making the local rules unenforceable. Many towns and cities in New York have either banned or limited fracking.

The issue is more pressing because a five-year moratorium on fracking (also known as hydraulic fracturing) is about to end.

According to CBS News (3/3/13), Governor Andrew Cuomo has delayed making a decision on allowing hydrofracking in New York State until results of a Pennsylvania health study are finalized, possibly delaying a decision by up to a year. The study, conducted by the Department of Environmental Conservation, was set to end in March.

People and organizations against fracking say they are concerned about the health risks associated with the process, as well as social and economic impacts.

In Colorado, however, Governor John Hickenlooper has said the state will sue any municipality that bans hydraulic fracturing. He made that announcement despite an oil and gas well releasing approximately 84,000 gallons of oil-tainted fracking flowback water. According to The Coloradoan (2/20/13), the flowback leaked for 30 hours.

Meanwhile, USA Today (3/20/13) reports that environmentalists and oil and gas companies in Pittsburgh have reached an agreement on fracking standards. The agreement will see companies encouraged to submit to an independent review, and if they meet certain criteria, they will receive the endorsement of the Center for Sustainable Shale Development. Among the criteria are limits on methane emissions, burning off of unwanted gas, and rules about wastewater disposal.



H&R Block Return Filing Leads to Lawsuits

NewsInferno; March 21, 2013

Lawsuits are being filed against tax giant, H&R Block Inc., over payment delays involving hundreds of thousands of incorrectly filed tax returns. Delays can be as long as six weeks.

In one case, a lawsuit alleges that H&R Block advertises a 100 percent accuracy guarantee on every product, but that H&R Block has erred, yet has not offered compensation to any of the plaintiffs or members of the represented class, said the Kansas City Business Journal.

That lawsuit, said the Kansas City Business Journal, includes statements issued by Bill Cobb, H&R Block CEO, in which he admitted the errors. “This was our mistake—and I sincerely apologize…. I want you to know that we hear the frustration of those impacted by this issue loud and clear, and we’re working every avenue we can to get your refund to you as fast as possible…. Finally, I know an apology won’t put your tax refund in your hands right away, and many of you still have questions. But right now, our singular focus is to get you that refund, and we have all hands on deck to help make this right.”

MarketWatch reported on two separate class-action lawsuits. Both involve a software glitch that led to the delay of hundreds of thousands of refunds. According to a prior MarketWatch report, the Internal Revenue Service (IRS) said that a mandated field was left blank on returns that used IRS Form 8863. This form is used to claim educational credits. Some 660,000 refunds were impacted.

The California class action alleges that H&R Block failed to comply with IRS regulations and procedures in the way in which it prepared the filings and that the delays created by the mistake have “caused significant disruptions and damage in households across the country,” said MarketWatch. H&R Block is being sued for breach of contract and negligence and for violating state consumer protection laws. The Michigan lawsuit seeks tax-preparation fee refunds and compensation for financial problems brought about over refund delays.

Cobb has not said if his company would refund customers over tax preparation costs. Meanwhile, H&R Block spokesman, Gene King said, “We continue to communicate with impacted clients and provide them updates when we can,” according to MarketWatch.

In addition to long refund delays, which are hitting some filers hard, the delays are also creating issues in the way in which federal financial aid filings are processed, explained MarketWatch. In some cases, tax returns must not only be completed and filed, they must be verified by the IRS before students can finalize their financial aid packages. This delay has created hardships for some families struggling with children in college.

The Department of Education did step in, said MarketWatch, notifying colleges about the issue and asking the schools to award aid estimates based on financial aid from information. It is not clear which, if any, schools will move ahead with awarding aid based on unverified form information.



Advance Legal Columnist: Look at All the Facts behind Outlandish Jury Awards

Silive.com; March 12, 2013

STATEN ISLAND, N.Y. -- Many Americans believe that their legal system is routinely exploited by money-hungry plaintiffs with cockamamie theories of civil liability.

Frequently cited as the ultimate example of legal lunacy is the monetary award obtained by Stella Liebeck for injuries sustained in February 1992, after she was burned by hot coffee purchased at a McDonald's drive-through window.

In fact, the case has given rise to the annual "Stella Awards," dishonorable commendations made to plaintiffs who have reaped financial windfalls from ludicrous claims.

Although still being recycled in mass e-mails, these eye-popping legal tales are pure fiction. A Staten Island woman's lawsuit filed last week in state Supreme Court brings to mind that celebrated case. Carol Liubicich Ayoub alleges that she was seriously injured by coffee, handed to her at the drive-in of a local Wendy's, that was "excessively hot" and "unsafely or improperly packaged."

Seeking unspecified damages, she asserts that Wendy's was negligent in failing to properly inspect the coffee container and "omitting to place proper warnings."

Although all the facts and circumstances of the case won't be known at least until discovery proceedings are complete, Ayoub's bare-bones complaint is already evoking derision from people who don't hesitate to dismiss it as sheer gall.

Ironically, it was that same summary reaction to Stella Liebeck's lawsuit that led to its being widely and wildly misunderstood.

Here are the actual facts of that case:

In February 1992, Liebeck was a passenger in her grandson's car when she purchased a cup of coffee at the drive-through window of a McDonald's restaurant in Albuquerque, N.M.

Her grandson then pulled his car forward and came to a full stop. With the cup braced between her legs, Liebeck managed to remove the lid only to have virtually all of the coffee spill on her lap. Her sweatpants absorbed the coffee and bound it close to her skin, causing third-degree burns over 6 percent of her body, including her inner thighs, genital and groin areas.

Liebeck was hospitalized for eight days, during which she received both skin grafting and multiple debridement treatments.

Scarred, she was partially disabled for more than two years.

Liebeck initially offered to settle the claim if McDonald's would pay her out-of-pocket medical expenses which totaled about $11,000. When the company refused, she initiated her suit.

According to the evidence adduced at trial, McDonald's had previously received over 700 claims for injuries sustained as a result of burns caused by its coffee.

Moreover, the company routinely served the coffee at temperatures close to 190 degrees, about 40 degrees higher than other restaurants. Indeed, one of McDonald's quality-assurance managers conceded that its coffee was a burn hazard.

To that same end, an expert witness in thermodynamics, testifying for Liebeck, told the jury that liquids at 180 degrees would inflict a full-thickness burn to human skin in only a few seconds.


While the jury returned a verdict in favor of Liebeck, she did not receive anything close to the millions of dollars widely reported.

Instead, the jury found that her actual damages were $200,000 but, concluding that she was partially at fault, reduced that amount to $160,000.

Its award of close to $3 million in punitive damages was reduced by the trial judge to $480,000.

Instead of pursuing appeals that they had filed, the parties entered into a final settlement that has remained confidential by court order.

It's very possible, therefore, that Liebeck actually received less than the compensatory damages awarded by the jury and less than the reduced punitive damages awarded by the judge.

Obviously, neither side felt confident enough in its legal position to risk a winner-take-all showdown in an appellate court.

Regardless of how cleverly a lawsuit may be devised, it will not withstand appellate review unless it is consistent with established principles of law.

Even where a novel theory of recovery is affirmed by an appeals court, it's because its rationale is a logical or reasonable extension of existing principles. This is how appellate courts guarantee that the rule of law, not whim and caprice, dictate the outcome of a case.

This is not to say that there are no unwarranted recoveries in tort actions. When they do occur, however, it is almost always because jurors shape the facts to justify the verdict they want to reach.

First and foremost human beings, they are sometimes swayed by sympathy for a plaintiff, bias against a defendant, or built-in conceptions about the nature of the case.

Injustices and even seeming outrages can follow because, unlike its review of legal issues, appellate courts are generally powerless to disturb the factual findings of juries unless they are unsupported by any reasonable view of the evidence.

For the most part, however, where a lawsuit seems to produce an absurd result, there is probably a rational explanation founded in either the law or the facts.

Stella Liebeck's lawsuit is a good example. While one may still not agree with the outcome, it doesn't look nearly as bad when the true facts are known.


Liberal Democrats Demand Obama Release Legal Basis for Drones

Politix; March 12, 2013

Eight of the most liberal Democrats in Congress have signed a letter asking Obama to reveal the legal basis for his use of drones in America and abroad.

The Democrats' move is clearly a follow-up to Rand Paul's 13-hour filibuster last Thursday. But the Democrats' missive focuses more on drone strikes overseas than did Paul's filibuster, which honed in on the killing of Americans on US soil. The letter worries that with many other nations acquiring drones, the Obama administration is setting a dangerous precedent that could damage international security.

"Every American has the right to know the underlying legal rationale that ensures due process," says the letter, obtained by Politico.

It's signed by Rep. Barbara Lee (D-CA), John Conyers (D-MI), Keith Ellison (D-MN), Raul Grijalva (D-AZ), Donna Edwards (D-MD), Mike Honda (D-CA), Rush Holt (D-NJ) and James McGovern (D-MA).

"Authorizing the killing of American citizens and others has profound implications for our Constitution, the core values of our Nation, our national security and future international practice. The executive branch's claim of authority to deprive citizens of life, and to do so without explaining the legal bases for doing so, sets a dangerous precedent," the letter continues. It asks Obama to present a report to Congress explaining how the drones program conforms to international law and due process.

You can read the full letter here.


Pharmacy Involved in Deadly Meningitis Outbreak Used Fake Prescriptions to Distribute Drugs

NewsInferno; March 11, 2013

A salesman from the firm that produced the tainted drugs linked with last year’s deadly fungal meningitis outbreak revealed that the lab made up prescriptions for fake customers in order to evade federal restrictions on drug manufacture.

To get around regulations on large-scale drug production by compounding pharmacies, clinics requested prescriptions with invented names such as “Bill Smith,” “Jane Doe,”’ and even “Homer Simpson,” the salesman told the CBS news magazine 60 Minutes, according to the Daily Mail (U.K.).

The New England Compounding Center (NECC), which produced the drugs responsible for the fungal disease that has killed 48 people and sickened more than 700, was only supposed to manufacture specific drugs for individual patients, but, the salesman claimed, the firm had as many as 3,000 clients.

As we’ve previously explained, compounding is a vital service for patients who cannot be treated with U.S. Food and Drug Administration (FDA)-approved medications and requires individually formulated medicines; for example, people allergic to certain dyes or inactive ingredients, or those who need a medication in a form not commonly available. Compounding pharmacies are supposed to produce these medicines on an individual basis, but Joe Connolly, a former NECC technician, said that in the year before the start of the meningitis outbreak, the company increased its output almost a thousand times, the Daily Mail reported. NECC was operating as a manufacturer without the federal oversight drug manufacturers are subjected to.

In September, patients who had been treated with injections of methylprednisolone acetate produced by NECC began to fall ill with fungal meningitis. According to the U.S. Centers for Disease Control and Prevention (CDC), new illnesses are still being reported nearly six months after the start of the outbreak. NECC has now gone out of business and its owner, Barry Cadden, has refused to comment on the allegations made by 60 Minutes. He invoked his Fifth Amendment right to avoid testifying to Congress, the Daily Mail said.


Stevens Johnson Syndrome: Zithromax Maker Warned About Zmax

Lawyersandsettlements.com; March 11, 2013

New York, NY: Drug companies often face criticism that they downplay the risk of side effects, especially the risk of serious side effects such as Stevens Johnson Syndrome. In some cases, the US Food and Drug Administration (FDA) gets involved, as it did when it sent a warning letter about the risk of azithromycin side effects to the drug’s maker. Although many drugs linked to SJS include a warning about a possible allergic reaction, patients who developed SJS say the warning was not adequate, given the severity of the situation.
Many medications that have been linked to Stevens Johnson Syndrome do not give specific warnings about what the condition looks like or how serious it can be. They simply warn that an allergic reaction can occur and if a rash appears, the patient should seek medical attention. But in some cases the condition the medication is treating also causes a rash, causing patients to believe the rash is linked to their being ill, not to taking the medication.

Although technically Stevens Johnson Syndrome is indeed an allergic reaction to medication - even medication that has been previously tolerated by the patient - referring to Stevens Johnson Syndrome as an allergic reaction as opposed to a life-threatening reaction might not convey the severity of the situation.

Drug companies - including Pfizer, maker of Zithromax - have been warned by the FDA not to minimize the risks of Stevens Johnson Syndrome. On June 19, 2012, the FDA sent a warning letter to Pfizer (found online at www.fda.gov), regarding the company’s “1 Day. 1 Dose” brochure for a drug called Zmax (azithromycin extended-release medication). The agency warned Pfizer that its brochure did not explain the severity of Stevens Johnson Syndrome - which can be fatal - and further did not note that some patients experienced continued severe allergic symptoms even after they stopped taking Zmax (the warning label did note that some symptoms recurred without further exposure to the drug but did not note how severe those symptoms were).

Zmax is used to treat mild to moderate infections including acute bacterial sinusitis and community-acquired pneumonia. Stevens Johnson Syndrome is a potentially fatal allergic reaction to medications including azithromycin. It often starts with a rash and swelling, and develops to the point where the patient’s skin sloughs off. Often the patient suffers permanent scarring, organ damage and vision problems.


California Labor Law: Is FedEx Heartless?

Lawyersandsettlements.com; March 11, 2013

Placentia, CA: Sylvia says that she was terminated from FedEx for entering her time card incorrectly. Sylvia’s employer likely has not violated the California labor law and she would be hard-pressed to file a California labor lawsuit. But Sylvia insists that she was wrongfully terminated.

California’s Labor Code states that an employment relationship with no specified duration is presumed to be employment “at-will.” In theory, this means that the employer or employee may terminate the employment relationship at any time, with or without cause. But it isn’t black and white. The at-will rule created by statute, the courts or public policy has exceptions. An employer can terminate a worker at will and, as long as it isn’t for the “wrong” reason, they won’t violate the California labor code.

In Sylvia’s case, she was fired for “stealing” from the company, although that accusation is quite a stretch. One employment attorney says that he has heard from employees whose employer accused them of stealing. Even though the employees had proven that someone else stole, the employer is still within rights to terminate that employee because it is not unlawful or “wrongful” termination.

“I was hired by FedEx in 2006 as lead project coordinator and my job was to make sure FedEx orders were delivered correctly - I had to catch all and any errors,” says Sylvia. “Everything was going well until about eight months on the job, when I had an argument with my assistant manager about child care. He threatened me by saying that if I left work to pick up my daughter from daycare I wouldn’t have a job when I returned.”

Sylvia scrambled and managed to get a friend to pick up her daughter, but she then found herself working in a hostile environment. She called her district manager and asked for a transfer: if she couldn’t be transferred, her only alternative was to resign.

“Thankfully I was transferred to another FedEx location but I had to work nights. My district manager, however, promised me that I would only have to work the night shift for one year. Two years later I was still working nights so I reminded my supervisor about the promise and that I couldn’t work nights anymore. Their solution: my hours were decreased from a regular 40-hour week to seven hours per week.”

Sylvia believes they were forcing her into resigning because of the daycare issue. She wrote a letter to HR explaining that she had to step down from her job as project coordinator. Apparently that seemed to work - she was transferred to another location and worked full time again. “Everything was working well and I got promoted two years later to assistant manager,” Sylvia adds. Six months later I was promoted to center manager and all was good for 18 months: I had nothing but great reviews and no write-ups.”

All was good at work, but Sylvia’s home life was another story. She filed for divorce after a 20-year marriage and became clinically depressed. Her doctor prescribed anti-depressants; Sylvia says the meds made her very forgetful and she found it difficult to function.

“I had an appointment with my doctor to get a different kind of medication and forgot to clock out,” Sylvia explains. “That day, my doctor said I had to get out of work on disability or I would have a nervous breakdown. So I went out for 24 days. Three days after I returned to work, I was fired! My supervisor told me that I entered the wrong information on my time card and another time I opened the center late; in other words, I made a few mistakes. The day I was fired I took an additional pill by accident and blacked out.”

Sylvia explained her problem to the district manager and he put her on administrative leave for two weeks. But a month later she was still waiting to return to work.

While she was waiting to come back, not knowing when she could return, and no communication whatsoever, Sylvia received an email saying, ‘We are committed to a full investigation for your sake and the company and when we are ready we will call you.’

“I went back to work and gave them a letter from my doctor saying I should take another few weeks off,” says Sylvia. “They called me three days later and fired me on December 14, 2012.”
Sylvia says she applied for unemployment benefits but FedEx is disputing that, with the excuse that she entered the wrong information on her time cards and in effect stole from the company.

“My doctor’s note says the side effects from my meds could be memory loss but they don’t care,” Sylvia says, crying. “I think they are heartless.

“I appealed my termination and just today they said I wasn’t getting my job back, regardless of my medication excuse. They also said that I was a center manager and should know better. I have one more appeal, which will go to the vice president of FedEx this week. The VP is supposed to look at my entire file and talk to the district manager who fired me. So if that doesn’t work, I will seek help from an employment attorney.”

LawyersandSettlements has contacted FedEx HR and is waiting for a reply.


How the Sequester Threatens the U.S. Legal System

The Atlantic; March 11, 2013

When the chief justice of the United States and the chief judges of each of the federal circuits gavel down the semi-annual meeting of the Judicial Conference of the United States on Tuesday, they will have on their agenda an unusual item: the alarming impact of the funding "sequester" on the nation's federal court system. The world won't end if students are denied the chance to tour the White House. It will not end if our National Parks open days late this spring. But citizens everywhere will see vital legal rights denied or delayed by the forced budget cuts.

All of the constituencies of the judiciary agree on this issue. Federal trial judges are quietly seething at the inability of the legislative and executive branches to avoid sequester. Federal public defenders, whose budgets have been cut twice in two months, are furloughing and laying off staff. The attorney general of the United States has expressed grave concern on behalf of prosecutors and federal law enforcement officials. And court administrators are expressing alarm over the effect of the cuts upon federal judicial services.

At the core of the problem is the fact that the judicial branch is financially beholden to the other two branches of government. This separation of powers was designed by our nation's founders to limit the judiciary's independence, and it has, and nowhere is this dynamic more visible than when a chief justice like John Roberts has to grovel for funding or otherwise justify the judiciary's minuscule portion of the budget. If the sequester isn't unconstitutional per se, it is causing an unconstitutional effect upon the swift, fair and equal administration of justice.

For Federal Court Administrators

In a letter forwarded last week to members of the House and Senate Appropriations and Judiciary committees, U.S District Judge Thomas F. Hogan, the Reagan appointee who now serves as director of the Administrative Office of the U.S. Courts, succinctly described the scope of the problem:

Public safety will be impacted because there will be fewer probation officers to supervise criminal offenders released in our communities. Funding for drug testing and mental health treatment will be cut 20 percent. Delays in the processing of civil and bankruptcy cases could threaten economic recovery. There will be a 30 percent cut in funding for court security systems and equipment and court security officers will be required to work reduced hours, thus creating security vulnerabilities throughout the federal court system. In our defender services program, federal defender attorney staffing levels will decline, which could compromise the integrity of the defender function...

Dennis Courtland Hayes, president of the American Judicature Society, the non-partisan national organization dedicated to the preservation and improvement of the American legal system, was even blunter in late February with the statistics he offered:

Nationally, up to 2,000 more court staff could be laid off or furloughed under sequestration. This would come on top of the more than 1,800 positions eliminated by the courts over the past 18 months, representing a potential 18% reduction in court staff since July 2011... Of particular concern to the American Judicature Society, which has worked for decades to improve access to the courts for self-represented litigants, those people seeking justice without a lawyer would have fewer services to help them navigate the judicial system.

"Sequestration's almost $350 million cut will not be fully felt in one day, one month or even one year," Judge Hogan wrote last week. "Reductions of this magnitude strike at the heart of our entire system of justice and spread throughout the country. The longer the sequestration stays in place, the more severe will be its impact on the courts and those who use them." The federal judiciary is being held hostage, in other words, because of the failure or the refusal of Congress and the White House to make a responsible budget deal.

For Federal Public Defenders

If federal court administrators offer the big picture impact of the sequestration, federal public defenders all over the country are sharing the details on an office-by-office basis. These stories are bad in two dimensions. First, there is the grim business of laying off desperately needed federal workers. Second, there is the impact those layoffs will have on ordinary people who for one reason or another are involved in the federal court system. It's really quite simple: The people being laid off try each day to help the rest of us secure our constitutional rights.

Let's start with Jon Sands, the longtime Federal Public Defender for the District of Arizona. Last month, Sands was forced to lay off 10 employees from the defenders' office. There were more cuts to federal public defenders' offices earlier this month (the Defender Program budget was slashed 5.17 percent in February and another 5.52 percent last week). "Even with the layoffs, I still must furlough," Sands told me this weekend via email. He wrote:

We have clients who need mental health experts to examine them, but whom must wait until the next budget allotment comes. We have investigators who can no longer go to the scenes of crimes, but call instead. We watch pennies so we can order transcripts. The impact of sequestration in criminal justice further makes the playing field uneven, with DOJ able to shift resources, while we can't. We are seeing offices shuttered, and staff sent home for 30, 40 even possibly 90 days.

In Utah, when news of furloughs hit the federal PDs office, Kathy Nester told me over the weekend that "several [Assistant Federal Public Defenders] stepped up to take extra days because we have staff that are single moms and this financial blow would be devastating to them and their kids." Another federal public defender, who asked to remain unidentified because of the nature of the situation, is facing a thirty-day furlough and had to lay off four employees. His story:

I laid off a young off a young [Assistant Federal Public Defender] Thursday, and he said he still wanted to work for us full-time while looking for other work. Makes me want to cry. Laid off a clerical type in another office. She is going for disability, but meanwhile, may come back 3 days a week with no pay, and staff there are covering her bus fare and coffee and lunch each day out of their own pockets. Definitely makes me want to cry.

Other federal public defenders have been more formal with their expressions of concern. In the Eastern District of Virginia, Michael Nachmanoff, the Federal Public Defender, informed the 4th U.S. Circuit Court of Appeals via letter last week that "at least seven public defender offices (and one community defender office)... will be required to turn down major case assignments -- such as death penalty cases, large white collar cases and representation of defendants facing civil commitment" -- as a result of the sequester.

Nachmanoff's counterpart in the Western District of New York, Marianne Mariano, offers more examples of the impact of the sequester upon federal judicial employees. In a letter last week to Dennis Jacobs, the Chief Judge of the 2nd U.S. Circuit Court of Appeals, Mariano wrote: "I anticipate all attorneys and staff will be furloughed 22 days. I have one employee who volunteered to take 28 days of leave without pay." In the Northern District of Texas, federal public defenders just warned judges that they "anticipate a likely need to withdraw from cases that require expert witnesses because our budget for expert witnesses has been decimated."

For the American People

One federal public defender, who also asked to remain anonymous because of the sensitivity of the current situation, offered this overview of what sequestration will mean to those who often need legal help and guidance the most. He wrote:

Sequestration has hit the truly indigent clients of the Federal Defender particularly hard. For example, Spanish-speaking families often write moving letters of support for relatives facing federal sentencing. Defenders have routinely paid to translate these letters translated into English, and these mitigation documents have played a central role in federal sentencing. With budget cuts, however, Defenders can no longer afford to pay outside interpreters the translation fees. As a result, Spanish-speaking families have effectively been silenced at sentencing, depriving indigent clients of critical evidence in mitigation.

The cuts have been particularly brutal for mentally-ill defendants. Many federal defendants suffer from a host of mental illnesses, and retained psychiatric evaluations are critical in determining competency, challenging allegations, and ensuring proper psychotropic medication is administered. Sequestration has devastated funds for these psychiatric experts. As a result, Defenders are forced to rely on their own lay knowledge, "talk" their client through appearances and pleas, and struggle with the risk of first submitting to an evaluation by government psychiatrists.

Even if you are not mentally ill, the sequester will impact you. If you are a creditor or a debtor and you want to resolve a bankruptcy in a timely fashion. If you are on federal probation and you can't get in to see your officer. If you are a state or local prosecutor and you no longer have federal funds to help you prosecute drug cases. If you are waiting for a federal drug test. If you are responsible for courthouse security or care about the safety of judges and court staff. If you want to go to trial in a civil case or are charged with a federal crime.

For Federal Law Enforcement

It's not easy on the other side of the fence, either. On the one hand, Congress and the Obama Administration want aggressive enforcement of criminal laws. On the other hand, they have been willing through the sequester to financially neuter the organizations directly responsible for such enforcement. National Public Radio's Carrie Johnson, in a smart report last week, revealed that Justice Department employees already are receiving their furlough notices. The FBI's abilities will be harmed, she reports. And then there is this:

At that meeting in Washington this week, state attorneys general worried about their share of the pie under a huge federal grant program. Janet Mills, the attorney general in Maine, was waving her hand with a question for Holder. "Could you please comment on the prospects for continued funding through the Byrne grants for drug enforcement and drug prosecutions and other criminal justice measures?" Mills asked. Holder said the states are right to worry about federal participation in drug task forces and other money the department sends to the states to help fight crime.

Crime -- and specifically border patrol work. Word in Arizona is that Operation Streamline, the longtime federal program of aggressive arrest and prosecution of unlawful immigrants, reportedly has been eased in the Ajo sector of the state as a result of the sequester -- evidently there isn't enough money to pay for the overtime for law enforcement officials. For his part, Attorney General Eric Holder told Senate Judiciary Committee members during his appearance last week:

As we speak, these cuts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted. Our capacity - to respond to crimes, investigate wrongdoing, and hold criminals accountable - has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts - on our entire justice system, and on the American people - may be profound.

Beyond a reasonable doubt, the sequester is having a profound and pernicious effect on the government's ability to observe its constitutional commands -- and to provide justice to its citizens. That's why the members of the Judicial Conference have a difficult and delicate task this week. The judges and administrators must adequately express the scope of their concern, and effectively explain the impact the sequester will have on the judiciary, without offending the very politicians who control the federal judiciary's budget. It's not right. It's not fair. It's a terrible testament to judicial independence. But sadly it's the way the politics of law works in America today.