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Monthly Archives: November 2009

Monday status conference: Back to work

Today kicks off a busy week on Capitol Hill as members of the Senate begin debating the details of the health care bill with an eye on bringing it to a vote before the December holiday break.

Meanwhile, across the street at the U.S. Supreme Court, the justices hear two cases today, including a case considering when the statute of limitations began running in a shareholder class action lawsuit against the maker of the controversial painkiller Vioxx. The ruling in that case could have a broad effect on how shareholder fraud suits are litigated.

In other news:

Federal filing deadlines change tomorrow: A law lengthening several statutory deadlines under the Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy Procedure, Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure is set to go into effect tomorrow. (Lawyers USA)

Heat is on White House crashers: Lawmakers are urging criminal charges against the couple who crashed the state dinner at the White House. (AP)

Too hot for TV? A legal advocacy group filed a complaint with the Federal Communications Commission over Adam Lambert’s controversial American Music Awards performance. (ABA Journal)

Slow year at SCOTUS: For the first time since Chief Justice John G. Roberts, Jr. took the helm, the Supreme Court failed to issue opinions in argued cases before Thanksgiving this year. (AP)

Happy Thanksgiving

As President Obama prepares to pardon the White House turkey today, lawmakers spend the holiday recess in their home districts, and visitors descend upon the nation’s capital (Washington is one of the top U.S. travel destination for Thanksgiving), DC Dicta will take a recess until Monday.

Happy holiday wishes to all!

Gov’t study boosts Chinese drywall claims

In a report that is sure to buoy the ongoing class action suits of homeowners claiming property damage and illness from drywall imported from China, A new federal study has found a “strong association” between the material and high levels of hydrogen sulfide.

The plaintiffs claim that the material not only caused their homes to literally corrode from the inside out, they also allege that noxious fumes emitted from the drywall made them sick.

“Hydrogen sulfide gas is the essential component that causes copper and silver sulfide corrosion found in the complaint homes,” said a statement from the Consumer Product Safety Commission on the study. “In ways still to be determined, hydrogen sulfide gas is being created in homes built with Chinese drywall … While drywall-related corrosion is clearly evident, long term safety effects are still under investigation.”

Many homeowners have joined major class action lawsuits alleging property damage and physical injuries. Hundreds of other lawsuits against builders, contractors, suppliers and manufacturers are also pending.

For more, see today’s Lawyers USA story. See also “Chinese drywall litigation on fast track,” from Lawyers USA.

Monday status conference: Abbreviated version

Lawmakers in Washington voted this weekend to move the health care debate forward, but came no closer to a consensus on what a final package will look like before heading to their home districts this Thanksgiving week. Things will be generally quiet around these parts for the next few days, but here’s a little news to kick off the week.

Online violators: Probation officers aren’t as plentiful or tech-savvy as sex offenders who are tracking children via cell phones, portable gaming systems and social networking sites. (Washington Post)

Writing’s on the drywall: A new bill filed in the House would prevent insurance companies from cancelling or failing to renew homeowners’ policies as a result of defective Chinese drywall in their homes. (Lawyers USA)

Employers, meet GINA: The Equal Employment Opportunity Commission began enforcement of Title II of the Genetic Information Nondiscrimination Act this past weekend. (Lawyers USA)

Friday morning docket: Judicial showdown over same-sex benefits

There is a battle brewing over the issue of extending same-sex benefits to federal court employees.

In this corner: 9th Circuit Chief Judge Alex Kozinski, who granted health benefits this week to the same-sex partners of court employees. The move came after colleague Judge Stephen Reinhardt gave a similar ruling for a federal public defender, finding that the Defense of Marriage Act was unconstitutional.

In the other corner: The U.S.  Office of Personnel Management in Washington, which rejected Kozinski’s ruling, saying it had to enforce the DOMA  – which bars such benefits for federal employees – even though the White House disagrees with it.

That didn’t set well with Kozinski, who yesterday ordered the OPM Thursday to quit interfering with his orders, arguing that the agency is exceeding its authority.

“The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal,” Kozinski wrote in his 18-page order. “I don’t believe Congress intended to grant OPM that authority. Instead, I hold [Congress] recognized the Judiciary’s inherent authority to resolve workplace complaints without interference by the Executive [branch]. This court’s non-discrimination plan requires that” the employee get spousal coverage. “OPM had, and has, no authority to conclude otherwise.”

A federal challenge to California’s state ban of same-sex marriage is currently pending in a California district court. The 9th Circuit would be the next stop for the case, since its outcome is likely to be appealed either way.

In other news,

Honeymoon’s over: Growing discontent over the economy, recovery efforts turn into a wave of criticism and outright anger from members of Congress directed at the Obama administration. (Washington Post)

Iqbal bill’s in the House: House lawmakers introduced a bill Thursday that would reverse two recent Supreme Court rulings and restore the “notice pleading” standard for federal civil actions. (Lawyers USA)

Trials and tribulations: The number of state court tort suits that make it to trial declined steadily over a 10-year period ending in 2005, dropping to about 4 percent, according to a new report from the U.S. Department of Justice Bureau of Justice Statistics. (Lawyers USA)

‘Loser pays’ med-mal bill: Two lawmakers have introduced a bill that would require losing medical malpractice plaintiffs to pay the legal costs of both parties. (Lawyers USA)

E. coli bill filed: Citing public concern about the safety of ground beef, Senator Kirsten Gillibrand introduced legislation that would require companies to test for a deadly E. coli strain. (New York Times)

Ricci saga continues: A group of black Connecticut firefighters hopes to block promotions for white firefighters who won a discrimination case before the U.S. Supreme Court. (AP)

WSJ: Kennedy rep asked other school for pre-pub ok

Justice Anthony Kennedy – in expressing his disappointment with a New York Times piece claiming the justice required pre-publication approval of student news accounts of his speech – told the Wall Street Journal: “The fact that you have something of a gotcha doesn’t mean you have to run with a story. There’s almost an urge to run with a story before you find out that it doesn’t have any legs.”

Well, apparently the Journal‘s Jess Bravin found those legs and is running on them.

Just as the dust was starting to clear over the flap following the coverage of Kennedy’s speech at New York’s Dalton School, Bravin reports that George Washington University Law School officials said their students were also asked to clear quotes from the justice’s speech at the school with the Supreme Court’s Public Information Office.

One GW student covering the talk said he had no choice but to abide by the request. It was “a big event for us, and you have to play by their rules,” he said.

Kennedy said he didn’t know about the request. The Public Information Office confirmed the pre-approval request with the Journal, and said it was made at request of member of Kennedy’s staff.

Hoyer: No estate tax quick fix

With time running out for Congress to enact some sort of estate tax reform before the scheduled 2010 repeal, lawmakers are pondering a one-year quick fix measure that buys them more time to put together a permanent reform package.

But the House majority leader isn’t happy with that solution.

In a meeting yesterday, Rep.  Steny Hoyer pushed fellow Democrats on the Ways and Means Committee to adopt a permanent fix this year, Bloomberg reports.

“He made a convincing argument for a permanent fix,” Connecticut Representative John Larson said after the meeting with Hoyer.

More from Bloomberg here, and more on the state of the estate tax here from Lawyers USA.

Kennedy upset by media flap

Supreme Court Justice Anthony Kennedy wants to set the record straight: reports that he demanded pre-approval before a student newspaper could publish a story about his recent visit to the school are not true. So please, everyone, calm down.

“The press loves to point out that people have double standards,” Kennedy said of the outrage after a New York Times piece stated that “Justice Kennedy’s office had insisted on approving any article about a talk he gave.”

“There was a clear suggestion that was based on a factual premise that was wrong” in the story, Kennedy said later — namely that he wanted to edit what the students wrote in the paper before it was published.

Word of the justice’s apparent practice of prior restraint spread across the blogosphere quickly after the Times story, with some commentators blasting the justice for preaching freedom of the press from the bench, but practicing something else outside the courtroom.

When the Times story fist ran, DC Dicta wondered if perhaps Kennedy was media shy after a recent misquote by a student newspaper twisted the justice’s words and sentiment. But, it turns out, the whole thing was a misunderstanding.

The Wall Street Journal reports that the justice never asked to check the story before publication. A misunderstanding over a rule barring outside media, but not school publications, was at the root of the flap. But, Kennedy told the Journal‘s Jess Bravin that the whole thing left a bad taste in his mouth.

“My relatives call me from California, my family is all upset, and other people are calling me,” he told Bravin. “What a stupid story,” he said. “After 40 years of teaching, the only time it’s mentioned is that I have a double standard, which is just not true.”

Obama to Senate: Got any bright (judicial nomination) ideas?

The Obama administration has been struggling to get judicial nominations confirmed by Congress in a timely manner. So White House officials are reportedly taking a new approach: asking the confirmers for suggestions.

White House officials are approaching Senate Democrats, asking them to suggest judicial nominees who they would get behind – and who they could persuade Senate Republicans to back as well, according to Roll Call.

The move is designed to stop the logjam of judicial confirmations. So far Obama has had only four federal district judge picks confirmed, and today David Hamilton, nominee for the 7th Circuit, is expected to become only the third Obama federal appellate judge nominee confirmed. Meanwhile, more than a dozen judicial and executive nominations remain tied up in the Senate Judiciary Committee.

Part of the holdup, of course, was the fact that the White House and Judiciary Committee spent much of the spring ad summer focused on filling a Supreme Court vacancy.

But GOP lawmakers say they are not to blame for the slow pace, denying they are blocking Obama’s nominees. “I am telling you, this is a myth. This is not obstruction,” Judiciary ranking member Sen. Jeff Sessions said.

Monday status conference: Monday morning quarterbacking

The Justice Department snapped the ball Friday, but lawmakers are still sounding off over the Obama administration’s decision to bring suspected Sept. 11 terrorists to trial in a New York civilian federal court. While some GOP officials blasted the move, saying it would create logistical nightmares and give terrorists a platform to spew propaganda, Democrats including Senate Judiciary Committee Patrick Leahy defended the move. More from The Washington Post.

President Obama is in Asia, where his busy agenda includes a chat with Chinese officials about defective Chinese drywall, which has led to a host of headaches and lawsuits over claims that the imported product caused damage and noxious fumes in thousands of U.S. homes.

And the U.S. Supreme Court could add some cases to its docket today. Oral arguments resume Nov. 30.


Judiciary slow to change: President Obama has nominated far fewer federal judges than President Bush did in his first 10 months in office, making the prospect of swift change in the federal judiciary seem dimmer by the day. (The New York Times)

Ricci firefighters seek promotions:  seek The New Haven firefighters who sued the city for discrimination in a case that went all the way to the Supreme Court filed a draft order in federal court Friday asking for most of them to be promoted. (Yale Daily News)

Porteous files suit: A Louisiana federal judge sued a House impeachment task force Friday, contending the panel is making the case for his ouster by using testimony he gave under a promise of immunity. (AP; More, including complaint and other filings, here from How Appealing)

More snags ahead on health care reform: Immigration looms as sticking point in health-care legislation. (Washington Post)

From Congress to prison: Former Rep. William Jefferson was to 13 years in federal prison for public corruption. (The BLT)