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Monthly Archives: February 2008

Justice Department gets its 15 minutes

One of the issues that led to some behind-the-scenes squabbling in the case of D.C. v. Heller, which tests the constitutionality of a ban on handguns, has been resolved today.

Today the Supreme Court ruled that the U.S. Solicitor General will have 15 minutes during oral arguments to make the case for the Justice Department as amicus. That’ll come in addition to the 30 minutes allotted for argument by each party during the March 18 event. This way, neither side has to share its argument time with the DoJ.

The Legal Times’ Tony Mauro has more here, and the Court’s orders today can be found here.

Monday status conference: Thomas keeps mum

Today the Supreme Court heard oral arguments in the cases of Cuellar v. United States and Warner-Lambert Co. v. Kent, which deal respectively with the standard of proof under a federal money laundering statute and federal preemption of state law fraud claims against drug makers.

As usual, Justice Clarence Thomas did not ask a question during today’s arguments. As DC Dicta pointed out a bit earlier, it has been two whole years since Justice Clarence Thomas has asked a question during oral arguments. (AP)

Among its orders today, the Court agreed Monday to resolve a dispute over the federal government’s ability to take land into trust for American Indian tribes (Carcieri v. Kempthorne, No. 07-526). (AP)

In its other two certiorari grants, the Court agreed to examine law enforcement’s ability to conduct a warrantless search of the automobile’s passenger compartment incident to the arrest (Arizona v. Gant, No. 07-542) and when erroneous jury instructions can lead to habeas corpus relief (Chrones v. Pulido, No. 07-544). The list of all today’s orders is here.

Here is a look at some of the stories in this week’s issue of Lawyers USA (Want to subscribe? Click here): UPDATE: If you tried the links before, and found they didn’t work, that’s because our new website just went live. The links should be fixed now. Sorry about that!

After several years of anticipation, the Department of Labor has issued its final proposed changes to the Family and Medical Leave Act. More here.

A judge’s recent decision to slam attorneys with $8.5 million in sanctions for failing to monitor their client’s e-discovery failures – and report them to the state bar for possible disciplinary action -sent ripples of fear through the legal world. More here.

A growing number of companies driven by a concern over litigation are ramping up employee training in an effort to stamp out sexual orientation bias in the workplace. More here.
 
Attorney General Michael Mukasey recently told a Senate panel that the Justice Department has replaced the controversial “McNulty memorandum,” which outlines federal prosecutors’ ability to encourage corporate defendants to waive the attorney-client privilege in order to cut a better plea deal. But attorneys representing corporations say they will believe the policy change when they see it – and so far, nothing has changed. More here.

Friday morning docket: another preemption case on tap

There will be little activity under the Capitol dome on this icy Washington day, as the Senate meets in only a pro forma session, and the House is out.

Today the justices of the Supreme Court are meeting in private conference (there may or may not be some orders released – we’ll let you know). UPDATE: Today’s only order involved the filing schedule in the government’s new appeal regarding Guantanamo detainees. More here from SCOTUSBlog.

But oral arguments resume next week at the Court, starting with the case Cuellar v. United States, No. 06-1456, where the Court will consider whether a federal money laundering statute requires proof that a defendant was trying to pass off dirty money as legitimate wealth.

Then, in Warner-Lambert Co. v. Kent, No. 06-1498, the justices will hear arguments in yet another case dealing with federal preemption, – this time considering whether plaintiffs may bring state law tort claims against a drug maker, claiming that the company made fraudulent representations to the FDA, or does federal law preempt such claims.

On Tuesday, the Court will hear arguments in Allison Engine Co. v. Sanders, No. 07-214, which asks whether a whistleblower must prove that a company made an actual false representation to the government to bring an action under the False Claims Act.

Then on Wednesday’s special extended 90-minute argument in the case Exxon Shipping Co. v. Baker, No. 07-219, the Court considers whether a judge can award punitive damages under maritime law in the case arising out of the 1989 oil tanker spill in Alaska’s Prince William Sound.

Meanwhile,

President Bush didn’t even wait to get off of the plane from his return trip from Africa to give the tumbs down to congressional Democrats’ proposed wiretap bill compromise. (AFP)

Sens. Kerry, Biden and Hagel were unharmed in an emergency helicopter landing in the mountains of Afghanistan. (AP)

The House will vote on the energy bill next week. (Reuters)

LaRue decision good news – for defense attorneys?

An ABA Journal piece today suggests that yesterday’s Supreme Court decision allowing individuals to sue their 401(k) plans under ERISA isn’t just good news for plaintiffs’ attorneys.

In LaRue v. DeWolff Boberg & Associates, No. 06-856, the Court held that ERISA provides a remedy for recovery for fiduciary breaches that impair the value of retirement plans.

But defense attorneys are taking a careful look at Chief Justice John G. Roberts, Jr.’s concurrence, which- as one attorney put it – “provide[s] a pleasant surprise from the defense perspective.”

According to the article, which cites reports from Portfolio, The New York Times and The Washington Post:

A concurrence by Chief Justice John G. Roberts Jr. said that the wording of the 401(k) plan may require LaRue to pursue a narrower “denial of benefits” remedy that would require him to exhaust administrative remedies [first]. His opinion was joined by Justice Anthony M. Kennedy.

Still the ruling was unhappy news for some business advocates, the Post reports:

Business advocates predicted the ruling would unleash a raft of lawsuits by employees, particularly as stock market volatility once again is causing havoc with investment accounts.

“Ultimately, employers aren’t going to sponsor plans if they’re going to be sued every time they make an innocent mistake,” said Thomas Gies, a Washington lawyer who defended the consulting firm, which denies any wrongdoing.

Kennedy: Congress should act after Medtronic

Could a congressional response to today’s decision in Riegel v. Medtronic be on the way?

Massachusetts Sen. Edward M. Kennedy, who chairs the Senate Health, Education, Labor and Pensions Committee, hinted at that today in his statement in response to the case.

“In enacting legislation on medical devices, Congress never intended that FDA approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices,” Kennedy said. “Congress obviously needs to correct the court’s decision. Otherwise, FDA approval will become a green light for shoddy practices by manufacturers.”

Last year, just days after the U.S. Supreme Court handed down its decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, declining to restart the statute each time a paycheck reflecting the alleged unequal pay is issued, Kennedy and a host of other sponsors including Sen. Hillary Clinton filed a bill seeking to overturn the decision. The legislation would give employees 180 days after the date of the last affected paycheck to file a claim.

Scalia offers help to attorney during CBOCS argument

While trying to guess which way a Supreme Court justice is leaning based on his or her comments during oral argument is never an exact science, DC Dicta will go out on a limb and say Justice Antonin Scalia is probably not in favor of granting employees the right to bring retaliation claims under 42 U.S.C. §1981.

In today’s oral arguments in CBOCS v. Humphries, No. 06-1431 (asking whether an African American restaurant assistant manager who claims he was fired after complaining about racially charged comments made by his manager can sue for retaliation under §1981) Scalia seemed to make his feelings clear.

At several points Scalia even told the attorney representing the employer to make better arguments for his case.

When attorney Michael W. Hawkins ran into trouble explaining to Justice Stephen Breyer why, if the Court has implied rights of actions under other statutes, it shouldn’t do so in this case, Scalia came to Hawkins’ rescue.

“Mr. Hawkins, don’t we have a whole line of recent cases which say we have set our face against implying causes of action?” Scalia asked.

“Yes,” Hawkins said.

“A whole bunch of recent cases saying we’re not going to do that any more?” Scalia continued.

“Yes, Your Honor.”

“We used to do it, but we said we’re not going to do it any more?” Scalia went on.

“That’s correct, Your Honor.”

“So why don’t you invoke those?!” Scalia shot.

[More after the jump]

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Trial lawyers’ group, device maker react to Medtronic decision

The American Association for Justice (formerly known as the Association of Trial Lawyers of America) is reacting to today’s decision by the U.S. Supreme Court barring state tort law claims by patients against medical devise manufacturers, Riegel v. Medtronic.

AAJ CEO Jon Haber issued this statement this afternoon:

“Today’s Supreme Court decision in Riegel v. Medtronic limits the rights of people to receive justice through the legal system when they are injured by the negligence or misconduct of others,” Haber said. “This decision should be narrowly viewed as applying only to certain medical device cases and should not serve as precedent for cases involving drugs and other consumer products.

“We believe this ruling seriously misconstrues Congressional intent.”

Meanwhile, in a statement to The Minneapolis Star-Tribune, Medtronic spokesman Rob Clark said:”We are aware of today’s favorable decision for Medtronic by the Supreme Court. This is an important decision for the medical device industry and our continued ability to innovate and bring lifesaving technology to patients.”

Trial lawyers’ group, device maker react to Medtronic decision

The American Association for Justice (formerly known as the Association of Trial Lawyers of America) is reacting to today’s decision by the U.S. Supreme Court barring state tort law claims by patients against medical devise manufacturers, Riegel v. Medtronic.

AAJ CEO Jon Haber issued this statement this afternoon:

“Today’s Supreme Court decision in Riegel v. Medtronic limits the rights of people to receive justice through the legal system when they are injured by the negligence or misconduct of others,” Haber said. “This decision should be narrowly viewed as applying only to certain medical device cases and should not serve as precedent for cases involving drugs and other consumer products.

“We believe this ruling seriously misconstrues Congressional intent.”

Meanwhile, in a statement to The Minneapolis Star-Tribune, Medtronic spokesman Rob Clark said:”We are aware of today’s favorable decision for Medtronic by the Supreme Court. This is an important decision for the medical device industry and our continued ability to innovate and bring lifesaving technology to patients.”

High Court rules in favor of federal preemption

Today, the Supreme Court issued five decisions, three of which hold that federal law preempts certain state regulations, state claims, or claims of jurisdiction by state administrative authorities.

In a decision that surely disappoints the plaintiff’s bar, the Supreme Court held in Riegel v. Medtronic, No. 06-179, that state law tort claims challenging the safety of FDA-approved medical devices are barred by federal law.

The opinion, authored by Justice Antonin Scalia, was based on the rationale that the Food and Drug Administration and federal laws covering device pre-market approval create a carefully-crafted balancing system for ensuring that safe products are on the market, while assuring that devices needed by patients are accessible. Federal regulators – not state authorities, and certainly not juries seated in state court trials – are in the best position to weigh the risks and benefits in this scheme.

“When state common law requires a recalculation of that balance, it frustrates” the regulatory scheme, Scalia said in comments this morning from the bench. “Leaving [it] to a jury [is] even worse.”

In Preston v. Ferrer, No. 06-1463, the Court held that the Federal Arbitration Act precluded the attempt by television’s “Judge Alex” Ferrer to go to a state court seeking a ruling that his contract with his former manager was void, rendering the contract’s arbitration clause void as well. He also sought to have the case heard before a state labor commission, claiming it held exclusive jurisdiction.

The opinion by Justice Ruth Bader Ginsburg held that once parties agree to arbitrate all disputes arising out of a contract, as Ferrer and his manager did, the Federal Arbitration Act preempts state administrative agencies, and the parties must arbitrate the dispute.
Allowing parties to go to state courts first “would likely [create] long delays, and Congress enacted the FAA to avoid delays,” Ginsburg said from the bench.

The court also ruled in favor on federal preemption in Justice Stephen Breyer’s opinion in Rowe v. New Hampshire Motor Transport Ass’n, No. 06-457, that federal law trumps two state laws requiring carriers delivering tobacco products to ensure that the recipients of the packages were of legal age to buy tobacco products.

In the other two opinions, both penned by Justice John Paul Stevens, the Court held that ERISA does not provide a remedy for individual injuries distinct from plan injuries for an administrator’s failure to follow the plan holder’s investment directions. But, the Court held that it does authorize recovery for for fiduciary breaches that impair the value of the entire plan. (LaRue v. DeWolff Boberg & Associates, No. 06-856) and that state courts can adopt broader rules of criminal procedure than those required by the U.S. Supreme Court (Danforth v. Minnesota, No. 06-8273).

More on these cases on coming up on this blog over the next few days, tomorrow on Lawyers USA‘s website, and in the next print edition of Lawyers USA.

Missing statute peeves Scalia

Note to all attorneys preparing to argue before Justice Antonin Scalia and the rest of the justices of the Supreme Court: if you are going to bring up a statute in your argument, you’d better make sure you include the language of that statute in your brief.

An attorney who failed to adhere to that rule seemed to irk Scalia this morning.

Washington D.C. attorney Joseph R. Guerra, arguing on behalf of a postal employee seeking the right to sue her supervisor for retaliation under the Age Discrimination in Employment Act in the case Gomez-Perez v. Potter, sought to compare that statute’s language to that of Title VII.

“Where is this stuff?” Scalia interjected. “Where is this text that we’re talking about?”

“I apologize, Justice Scalia,” Guerra said. “It is not in-”

“It’s not in your brief,” Scalia said, finishing Guerra’s sentence for him. “It’s not in the appendix. So I don’t know what you’re talking about.”

Guerra tried to clarify. “I am talking about subsection (c) of 717a, the federal sector provisions of Title VII.”

“Which we don’t have here now,” Scalia persisted.

If Guerra thought that was the end of it, he was wrong.

[More after the jump]

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