"The foundations of justice are that no one shall suffer wrong." - Cicero

Same-Sex Marriage Question to be Finally Tackled by the Supreme Court

Posted on Friday, January 23rd, 2015 at 8:22 am    

The U.S. Supreme Court has been historically elusive about taking a stand on the issue of same-sex marriage. It obliquely gave it a nod by refusing to review the ruling of the federal appeals courts to strike down same-sex marriage bans in 7 cases in 2014 but making no comment.

However, when the 6th Circuit upheld the ban in Michigan, Ohio, Kentucky and Tennessee in November 2014, it created a split in the federal appeals level. This may have influenced the Supreme Court to finally weigh in on the issue. It agreed to review the federal appeals courts’ decisions on those self-same states in one hearing scheduled for April, consolidating the arguments of all four cases.

The U.S. Supreme Court is expected to settle the question once and for all if banning same-sex marriage is unconstitutional. Legal representatives of the four states will be granted 2 ½ hours to argue their case. A ruling is expected sometime in June.

Same-sex marriage is legal and recognized in 36 states plus the District of Columbia, but the remaining states are steadfast in refusing to allow it and do not recognize the legal standing of same-sex couples married in other states. This has sparked a fierce debate about the denial of these states of the protections and rights provided in marriage to same-sex couples, such as those pertaining to property, succession, and custody. Advocates for same-sex marriage have continuously argued that banning same-sex marriage is a violation of the constitutional rights of lesbians and gays.

Same-sex marriage advocacy has gone quite a long way in a short time. It was only in 2013 that legality of same-sex marriage was conceded on the federal level as a result of the landmark case United States v. Windsor. The outcome predicted in mid-2015 will finally resolve the same-sex marriage constitutional issue.

Motion to Consolidate Xarelto

Posted on Thursday, December 11th, 2014 at 9:11 am    

pillsThe US Judicial Panel on Multidistrict Litigation (JPML) is currently considering a motion by lawyers of 50 plaintiffs to consolidate their personal injury lawsuits filed in 15 federal courts against Bayer AG and Janssen Pharmaceuticals Inc. under one roof. The proposed multidistrict litigation (MDL) venue is Illinois under Judge David Hendron.

Bayer and Janssen has countered this motion by requesting the JPML to consolidate the cases in New Jersey under U.S. District Judge Freda Wolfson, pointing out that it is where they have their US headquarters. The motions were heard in the federal district court in Charleston, SC last December 4, 2014 and a final decision is pending. The decision to consolidate the cases is a natural progression of litigation given that the cases levied against the defendants are practically identical. The beauty of an MDL is that while the cases are heard as a cohesive whole, each plaintiff retains control of the case as it applies to them.

Xarelto is a prescription blood thinner or anticoagulant that was first sold in the US in July 2011 designed to prevent stroke and manage blood-clot risk. The first complaints about it being too effective came not long after, where patients reported uncontrollable bleeding. Because Xarelto has no counteracting agent (unlike standard anticoagulant warfarin, for which Vitamin K is an effective antidote), uncontrollable bleeding can lead to dire consequences. In some rulings, Xarelto was deemed to be too dangerous to be sold in the first place.

Despite these dangers, Xarelto continues to be prescribed by physicians, a pattern that will most likely hold true presumably until such time as the drug is found to be too dangerous indeed to be used, or not.

Wing-less Plaintiffs Prevail in Preemptive Settlement

Posted on Friday, November 21st, 2014 at 3:01 pm    

icarusPopular energy drink is under fire for failing to live up to its slogan, which was “Red Bull gives you wings.”

Austria-based Red Bull GmbH which manufacture and market the energy drink Red Bull agreed to pay all U.S. claimants that purchased the drink from 2002 between $10-15 as compensation for alleged false advertising. It could be argued that the slogan was merely an exaggeration and not meant to be taken literally.

The idea that those who drink the product expected to actually develop wings may seem far-fetched. From a legal point of view, apparently, the claim had merit because the case was successfully certified for class action.

Whether the courts would continue to look favorably on the claimants’ stand will never be known though. Red Bull decided to agree to a $13 million settlement, half of which is slated for the estimated 1.4 million people who may make a claim rather than go through the litigation process although they continue to defend their position that notwithstanding the slogan their advertising was accurate and truthful.

After all, puffery is an accepted part of advertising, and in most cases the legal doctrine caveat emptor or “buyer beware” curtails the liability of companies for using flowery language to sell their products. In the case of Red Bull, however, the $13 million price tag to avoid legal wrangling was probably a smart move, considering that the product garnered billions of sales for its manufacturer over the years. Officially, drinking Red Bull does not give you wings.

The SEC and the Issue of Foreign Whistleblowers

Posted on Thursday, October 9th, 2014 at 9:20 am    

shutterstock_169965725When a whistleblower in the U.S. is terminated for exposing illegal practices of a company or organization, they have recourse to anti-retaliation provisions stipulated in the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted in 2010. These regulations were part of broader efforts to make it easier for the federal government to keep an eye on institutions and enforce regulations. However, when a whistleblower is not on U.S. soil but still provides information that impacts U.S. concerns, these protections do not apply.

The global market is increasingly impinging on all parts of the world and in all industries, so it is entirely likely that important information about a company trading or doing business in the US that does not conform with standards may come from a foreign source. This is a boon for the Securities and Exchange Commission (SEC), which is the regulatory body for businesses both local and foreign, and they are willing to pay for it. In one recent case, the SEC announced that it paid $30 million to a foreign whistleblower of a publicly traded company that operates in the U.S.

In 2013, the SEC revealed that there were 404 reports made by whistleblowers, almost 12% of all reports made for that year. This is a significant contribution to the whistleblower initiative, and should be afforded due importance.

However, a recent court decision denied the applicability of the Dodd-Frank anti-retaliation statute to a foreign worker who blew the whistle on Siemens. This may eventually put a crimp in the effectiveness of the SEC to regulate overseas-based companies.

The Future of College Sports

Posted on Thursday, September 4th, 2014 at 9:44 am    

NCAAIt is no secret that colleges court the best football and basketball players coming out of high school, but they are limited by what the National Collegiate Athletic Association (NCAA) says they can offer as incentives to these budding stars. That could change, however, if Jeffrey Kessler wins his antitrust lawsuit against the NCAA to open the market in college sports.

Kessler maintains that since colleges make money from their players, the players should get a piece of the pie. He used the University of Texas, which earned more than $165 million for school year 2012-13 from its athletics programs according to its 2014 annual report, as an example.

This is not the first time that the NCAA has been accused of antitrust violations, and a federal judge has already ruled in that. As a result, five of the most influential conferences have gained more freedom about how they compensate their athletes, but Kessler wants college athletics to be as market-driven as professional sports.

It’s also not Kessler’s first time around the block in sports litigation. He was successful in negotiating for the free-agency system currently prevailing in the National Basketball Association (NBA) and National Football League (NFL). He is now bent on expanding the earning opportunities of college athletes, many of whom may never make it to professional sports. Kessler’s bid has already made it past the preliminary hearings, and if all goes well, a trial date could be set for 2015.

Ferguson Shooting Brings Up Old Wounds

Posted on Thursday, August 21st, 2014 at 4:22 pm    

14726321648_28b542b874_zIn the days of civil unrest that have followed the killing of Michael Brown, 18, by a Ferguson police officer, many of the details of the incident are still unclear.  Police officials maintain that the shooting followed an altercation and a struggle over the police officer’s gun, a narrative that has been met with “outrage and skepticism in the largely African-American community,” according to the New York Times.  What is acknowledged by both the police and community is that Brown was unarmed at the time of the shooting.

Only a year ago, jurors found the Chicago police department liable for the wrongful death of Aaron Harrison, a case that strikes a troubling resemblance to the shooting of Brown; Harrison too was an unarmed, 18-year-old African American male who was shot by a police officer.  While the Independent Police Review Authority in Chicago, according to the Chicago Tribune, found that the shooting was justified in 2009, jurors in a civil trial disagreed.

While jurors awarded Harrison’s family with $8.5 million for his wrongful death, it took 6 years for justice to be served.  However, it was the persistence of Harrison’s family that ultimately resulted in the city and police officer being held accountable for their son’s death. “They never gave up hope of justice and justice prevailed for them, the truth came out and the city was held accountable,” says Chicago-based lawyer Larry Disparti.

Outlined by the National Institute of Justice, most law enforcement agencies have specific policies that describe how a police officer may utilize a continuum of escalating actions to gain control of a situation.  As such, lethal force may normally only be used when a suspect poses a serious threat to the police officer or to another person.

At the time of the Harrison shooting, as reported in the Chicago Tribune, police officials claimed that Harrison raised a handgun at the police officer who then shot Harrison to defend himself.  However, five eyewitnesses disputed this claim, reporting that at no point did Harrison have a weapon until after he was already handcuffed.  The circumstances appear to be closely related to Brown’s shooting; police officials claim that the shooting officer was seriously attacked and in danger of further injury, while eyewitnesses claim that Brown had his hands raised above his head.

Depending upon the circumstances of the shooting, then, the Ferguson police department may also be found to be liable for the wrongful death of Brown, as in the case of Harrison.  As frustrating as it is, it may take a substantial amount of time and investigation to understand exactly what happened in the moments before Brown’s death. With that in mind, Disparti claims, “I think one of the lessons we can look to from the Harrison case is that people in Ferguson need to have faith in the legal system.  It works.”  While financial compensation will never account for the loss of life, it may serve as a statement against the injustices sustained by Harrison and his family.

Days after Brown’s death, a White House petition was created calling for police officers to wear cameras on their vests at all times, as reported by the Washington Post. Having already surpassed 100,000 signatures, the White House is now obligated to respond to the petition.  The video evidence this policy would make available would likely have a twofold effect: police officers would be under greater obligation to adhere to the procedures of their police department, and definitive proof would be made available either affirming or disproving allegations of police misconduct.

Controversial Liability Law Under Fire From Big Insurance

Posted on Friday, August 1st, 2014 at 3:24 pm    

scaffoldingManhattan’s iconic skyline view would not have been possible without the hard work and bravery of construction workers who perform one of the world’s most dangerous jobs, high above the ground. Section 240 of the New York State Labor Law, also known as the Scaffold Safety Law, protects those who suffer debilitating injuries on the job. The Scaffold Law applies to height-related construction injuries and holds property owners and general contractors accountable when a worker’s accident is caused due to the lack of proper safety protections.

Unfortunately, insurance companies are lobbying hard to eliminate the Scaffold Law and deprive construction workers of a necessary protection. Contrary to the insurance industry’s claims, owners and contractors can avoid all liability under the Scaffold Law simply by providing workers with necessary safety precautions. The Scaffold Law is essential in holding contracting firms accountable and ensuring that money-saving corners are not cut at the expense of human life. Thanks to the Scaffold Law, New York had the nation’s fifth-lowest construction injury rate.

quoteIn a recent case, Hach & Rose obtained a thirteen million dollar jury verdict for a worker who fell from a twenty-five foot ladder while he was painting, suffering severe, life-threatening injuries. Unfortunately, the victim did not have a co-worker available to hold his ladder while he was painting, and a safer way to do his job was not provided to him. If not for the protections of the Scaffold Law, the worker would have been limited to the benefits of workers’ compensation. Michael Rose, who tried this case, said:

“This case is the perfect example of why the scaffolding law is so important. If the law did not exist, our client would have received about $500 per week, that’s it. I don’t see how that could possibly be fair for someone who spent one year in a rehabilitation center after brain surgery, learning how to walk, talk, eat, and read all over again. His brain has been permanently injured and he cannot exist on his own. If he had simply been provided with a mechanism to tie off his ladder or had someone available to hold the latter for him, he would still be living a normal life with his family. Thankfully, the protection provided by the Scaffold law allows injured workers to be compensated for their full damages and live their lives with dignity when proper safety precautions are not taken.”

Fortunately, because of the accountability provided by the Scaffold Law, the victim was compensated for his past and future lost earnings, past and future medical expenses, loss of pension benefits, loss of annuity benefits, loss of medical insurance, and for his pain and suffering. Although money cannot make up for loss of health, it can allow the victim and his family financial security.

Trademark Infringement for a Roll

Posted on Thursday, July 31st, 2014 at 11:36 am    

When a native dish in one country is brought to another country, can the bringer claim it as a trademark?flatbread

This is the main issue in a lawsuit brought by one company that opened in 2002 against another that opened in 2014 in the same neighborhood with similar offerings. The primary one is the kati roll, a treat typically found on the streets of India, which is basically an Indian flatbread filled with meat, cheese, vegetables and egg. The plaintiff claims that the defendant had unfairly appropriated her trademark colors, recipes, and layout, including hiring former employees, to mislead customers into thinking they were one and the same company.

The defendant claims that the kati roll is common in India and similarities in taste and presentation would be inevitable, as well as many of the traditional flavor combinations and accompaniments. They further denied that the former employees were in any way instrumental in influencing the décor, layout and uniform of the new restaurant. None are in management positions and were hired after the restaurant had already been set up.

The case was brought before the Manhattan Federal District Court, and presiding judge Shira Scheindlin allowed the lawsuit to proceed after hearing the arguments from both sides. A trial date has yet to be set.

It would be interesting to see how the case will eventually go. There are many cultures in the US, and there will always be someone who will be the first to introduce their favorite native dish to the public. However, this does not give them the right to appropriate it as their own and prevent others from doing the same thing just because they are losing business, unless the similarities are such that a reasonable person would inevitably confuse one with the other.

Truck Accident Injuries, Fatalities on the Rise

Posted on Thursday, June 26th, 2014 at 10:34 am    

Truck AccidentAccording to the most recent data from the National Highway Traffic Safety Administration (NHTSA), the number of injuries resulting from a truck accident increased 18% in 2012 over the figures from 2011. A total of 104,000 people were injured in accidents involving a large commercial truck, according to the agency.

In addition to injuries, fatalities resulting from truck accidents also demonstrated an increase. 3,921 people were killed in a truck accident in 2012, compared to 3,781 in 2011, for a reported increase of 4%.

The worrying trend displayed in these numbers makes clear that truck accidents remain a significant threat to those on our nation’s roadways. Indeed, as the website for Williams Kherkher, Houston truck accident lawyers, points out, the average cost resulting from a truck accident is more than $59,000, meaning that many accident victims have to cope with large financial costs as a result of their injuries.

For this reason, truck accident lawsuits can play an important role in helping the victims of truck accidents, as well as the families of those who may have been killed in these types of accidents, to pursue much-needed compensation.

City Sued over “Excessive” Parking Ticket Fines

Posted on Monday, June 9th, 2014 at 10:59 am    

When your parking ticket fine is three times more than what you earn in a day, it is a matter of concern. But is it in violation of the Constitution? shutterstock_55735285

A resident of Los Angeles, Jesus Pimentel, started the class action ball rolling when he received a parking ticket when the meter where his car was parked expired. He is claiming that the $175 fine was excessive, and in violation of the Eighth Amendment of the U.S. Constitution as well as Article 1 Section 17 of the California Constitution. He also alleged that when he failed to pay the fine, he was not allowed to renew the registration on his car and was threatened with impoundment of his car as well as civil litigation. This, Pimentel’s lawyer says, is a violation of due process, another hit at the Constitution (Fifth and Fourteenth Amendments).

Pimentel is the lead plaintiff in a class action suit against the city, but his lawsuit is not the only one. Jeff Galfer, another Los Angeles resident who received similar treatment is also petitioning for joiners for a class action suit. In addition to the city’s Department of Transportation, Galfer also named Xerox State and Local Solutions, which handles the parking ticketing system for the city. If the court rules for the plaintiffs, it could have significant repercussions in transportation departments all over the U.S.