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A Thought on McDonnell

Yesterday  I led off with a mention of the Supreme Court’s ruling on Bob McDonnell. Lo and Behold, (I have always wondered who came up with Lo and Behold. I looked it up and learned that it comes from 18th century literature of “look and see”, which makes no sense to me. So, no charge for such blog inclusion!) … so back to our regularly scheduled programming of “Lo and behold”.

Anyway, it caught my attention that McDonnell’s conviction was vacated by a unanimous ruling of the Supreme Court. The Court did note that it found the case to be “distasteful” and full of “tawdry tales”. But, elected officials will breath a sigh of relief about free trips and free lunches with lobbyists now.

In the meantime, the government will have to decide if it will retry McDonnell. My guess is no. Also, Bob will be receive his full entitled pension; decide if he wants to get back into politics; or become president of either Regent University or Liberty University. That’s just my guess.

Also, the judge in the Federal court jury trial, Judge Spencer, will now always be remembered for this case and that his rulings were overturned. No judge likes to be overturned on appeal.

And what does Bob McDonnell think about the Supreme Court’s ruling. Well, apart from a great sense of relief, I think that his attorney verbalized it best when he said, “We thank the Supreme Court for unanimously bringing justice back into the picture for the McDonnells”. Now that’s a parting shot at Judge Spencer!

And for pic o’ day, maybe some “invitation advice for your July 4th picnic:

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Monumental Waste of Time

I can be accused of sometimes wasting time. However, I have never had a judge in open court make a determination that I was wasting time. Not so for some California lawyers.

A federal judge in San Francisco has showed his loss of patience with lawyers in a pending antitrust lawsuit. In the suit, the plaintiffs are claiming that credit card companies were slow to certify chip readers to assist in the fight against credit card fraud.

U.S. District Judge William Alsup declared the plaintiffs’ request for an injunction “a monumental waste of resources” in a March 16 court, while denying their motion for an injunction. The judge was so ticked off with their motion that the judge ordered the  lawyers to explain how they will provide opportunities in their litigation for “the next generation of practitioners.”

According to the Recorder, the judge wrote that “In reviewing the file, the court is of the view that the pending motion is so deficient that it would be a monumental waste of resources to require the 18 defendants to respond and oppose the motion.”

I don’t even care about the facts of the lawsuit. I am just fascinated with the judge’s order. It’s real! “Stop wasting time” is basically a good mantra to live by.

And for our pic o’ day… I couldn’t stop laughing about this when it was sent to me. Think about “Robert”.

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Wal-Mart Wage Lawsuit

The greeters at the doors of Wal-Mart leave me with a positive feeling, because they smile. Not all Wal-Mart employees are smiling.

In 2002, several employees brought suit against Wal-Mart claiming that they were made to work on breaks, and that they did not get paid for those breaks as promised. Basically, a claim for failure to pay wages.

In 2005, these employees were certified as a class action. In 2006, the class went to trial and secured a jury verdict in the amount of $187 million. Wal-Mart appealed but ultimately the Pennsylvania Supreme Court upheld the verdict.

From that opinion, Wal-Mart has taken their appeal to the U.S. Supreme Court. At issue is not whether the employees were improperly joined as a class to bring an action. Wal-Mart had previously been successful in a 2011 case for that reason,  when the Supreme Court struck down the certification  of a class for 1.6 million female employees who had brought suit with a claim for gender discrimination, relating to pay and promotion policies at the stores. (Wal-Mart v. Dukes)

Instead, the basis of appeal for this present wage lawsuit is an attack on the expert testimony at the original trial. According to Wal-Mart’s appeal, the testimony was based on a condensed version of information rather than actual evidence, which caused the expert testimony to be given in error. The argument… that there was no real evidence at trial relating to lost wages since there was no evidence of time-clock records.

At one time, Wal-Mart had used time clocks for employees. Close to the time of the original suit, all stores had ceased requiring time clock  “clock-in” by the employees. As a result, Wal-Mart now argues to the Supreme Court that no claim for loss of wages should exist without specific proof. The case will be heard during this term of Court.

And pic o’ day is more cartoon today:

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A Settlement Story

I recently finished up a pharmaceutical settlement with a group of women. Our claim related to cancer from hormone therapy.  Most of the time, I don’t discuss settlements or their amounts because I consider it a private matter for my clients. Sometimes, a letter or story comes along that makes me want to share.

I recently received a letter that specifically mentioned that it would be ok if I shared a bit of her story. I have intentionally left out the specific names and places.  I think that if insurance adjusters and defense lawyers were able to see the result of the settlements years after the cases end, it might change how they view cases during the process.  The following is a portion of that letter which discusses the impact of a settlement  far better than I ever could:

I am a former elementary teacher who eventually had a word processing business in my home and also worked as a temporary in a city attorney’s office. In 2003, three years after my diagnosis of cancer, I had the opportunity to move to the mountains (in another state) and work as a permanent employee and pay into their retirement system.

     I remember thinking that if I lived five years without the cancer coming back, I would break even financially as a result of the move. I also thought that if the cancer did come back, at least I would have a beautiful view of the mountains while I was sick. Thankfully today, I remain cancer free.

     As someone who was the first in my family to finish college and paid for my education, I was alwsys extremely cost conscious. Now, because of my settlement, I am able breathe alot easier now and enjoy life more. I am also thankful that the settlement served to hold the drug company accountable for what they did.

     One of the most fulfilling activities that I am now involved in is a Women’s Cancer Survivor Group. It is a privilege to give back by assisting women diagnosed with cancer. In addition, I have also had the opportunity to take an art class and have pursued a passion by producing note cards with my art, and framed prints. I never imagined that while healing from cancer, my life would lead me down this interesting and exciting path. I look forward to each day of the journey.”

DID YOU KNOW that the man and woman who were the original voices for Mickey Mouse and Minnie Mouse got married in real life.mickey

For pic o’ day, a good reminder:

a smile

Attorney General Sues Trump

During the week we have attorney and paralegal meetings at the Firm. I jokingly call them Joel Bieber University. Yep… JBU. At  least I try to underpromise and over deliver… by keeping them awake during most of the meetings!

When Donald Trump hit success with the TV program The Apprentice,  he was presented with several money making opportunities that included Trump Ice, a line of clothing and an educational program.

Those that bought his clothing could see what they were getting. I guess there is no surprise over water. The educational program called Trump University, has now brought a lawsuit from New York’s Attorney General. (Associated Press)

A $40 milliion dollar lawsuit has been filed against Trump alleging that Trump has helped to run a phony “Trump University”.  The lawsuit  claims that many of the 5000 students that enrolled have not received what was promised, and that their tuition basically only bought them books that were written by Trump. In addition, the pleadings allege that the programs actually caused “real financial harms” by encouraging students to increase their lines of credit on their credit cards, to help make real estate purchases. Instead, they were pressured to buy Trump real estate books.

Trump’s attorney accuses the Attorney General of just trying to extort campaign money and get headlines by going after Trump. He said that Trump University has over 11,000 testimonials of students praising the program. He further stated that, “This entire investigation is politically motivated and it is a tremendous waste of taxpayer money”.

One part of the lawsuit that made me laugh related to pictures with Trump. According to the lawsuit, students thought that they would meet and have their pictures taken with The Donald. Instead, they had their picture taken in front of a life-sized picture. Yep… a cardboard disappointment right there.

For our DID YOU KNOW segment, I went to Ripley’s Believe it or Not. It’s the story of Dominic Calgi. He was extremely proud of his car. His license plate was 5V 17 32. His date of death… May 17, 1932. Now that’s a Ripley’s!

Pic o’ day is from my Mom:

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Judge Judy’s Son

Does having a mother for a Judge make you more or less inclined to file a lawsuit? Well, in this instance, the answer is yes if you are talking about Judge Judy’s son, who has filed suit against a sheriff. (NY Times) As additional consideration, Judge Judy’s husband, Jerry Sheindlin, was a New York state Supreme Court Judge, and also briefly served as a TV Judge on “The People’s Court”.  Parents as Judges!

I have to digress to note that Judge Judy Sheindlin currently earns $45 million-a-year in her  position as a TV Judge, so maybe she doesn’t really fit the usual Judge profile.(celebrity net worth) Maybe Levy is impacted by a mother who has been known to have a “bit of a bite” in her courtroom demeanor. She has said all of the following to individuals that have come before her in her courtroom: (from wikipedia)

Do I have ‘stupid’ written over my forehead?”  “I’m here because I’m smart, not because I’m young and gorgeous, although I am,” “If you live to be 100, you will never be as smart as I am, sir,” “Clearly you are not wrapped too tight,” “Where did you think you were coming to today, a tea party?!” “I’m speaking!” “If you interrupt again madam, your case is dismissed, and I’m throwing you out. Do we understand each other?” “I’ve been in this business for over 40 years,” “Do I look like I need help from you?” “That’s a lot of who shot John,”  “This is my playpen

Adam Levy

But I digress. Their son, Adam Levy, has filed a $5 million dollar defamation lawsuit against a sheriff that Levy claims improperly interfered with a rape prosecution. The subject matter of the suit relates to the prosecution of a personal trainer who was accused of raping a 13-year-old.

Levy claims in the lawsuit filed against the sheriff, that he defamed him by claiming that Levy used his position as Putnam County District Attorney to have an “improper involvement” in the prosecution of the rape charge.

The suit claims that there is “a simmering hostility” between Levy and the Sheriff’s office after Levy began to expand videotaping of suspect interviews. The personal trainer had previously stayed at Levy’s house, so there is an ongoing friendship that was prior to this prosecution.

Judge Judy, not surprisingly, decided to express her opinion on the matter. She added that her son is “principled, honorable and dedicated” and when someone attacks her son’s character, “they best be prepared to back it up. Shut up… or pay up”.

And now, after that long description, here’s something else to chew on. DID YOU KNOW that it is illegal to sell or chew gum in Singapore? This law was in response to gum being improperly placed under chairs and tables.

And for pic o’ day, I am jumping ahead of the curve here because I expect that you are having a hard time believing that gum chewing law.

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The Video Deposition

     Do you remember this Schwab investment TV advertisement? It is comparing a bad stock company to Schwab by portraying some boiler room stock-selling company in a unfavorable way. Their manager is telling all the sales people to get on the phone and pitch some crummy stock to customers by “let’s go out there and put some lipstick on that pig”.lipstick pig

     When I watch it, it still makes me laugh. It also reminds me a little bit about what sometimes happens in some of our cases. A thought on the evidence.  (Practice Alert)  I am going to tell you a blog secret between you and me!  Defense lawyers… your eyes are getting very sleepy. You better go catch a nap.   

     This involves why we video the depositions of the opposing party (defendant) on most of our cases. I am not insinuating that the other side is a pig. Just whether a jury perceives someone trying to be something that they are not. The defense attorney making their client get all  “dressed up for court”. 

     This past week, I drove to Wytheville, Virginia, for my scheduled depositions. I was taking the defendant’s and the opposing attorney was questioning my client.  We also had the deputy who had investigated this 2010 crash. Because the defense attorney’s office was about 50 miles from the county, we agreed to have the depositions at the courthouse where the trial is scheduled.

     I showed up a little early so I could also get a look at the courtroom. Then, I was shown back to the law library where the depositions were scheduled. Soon, my client, the court reporter and videographer arrived. I had noticed the deposition for video and court reporter. The defense deposition notice was for transcription by the court reporter without any video.

     The defendant arrived before his lawyer. He was dressed in a T-shirt and jeans. Like he would normally dress everyday. Soon, his lawyer arrived. The depositions proceeded. After I had completed the first deposition, the videographer packed up and left.   

     Generally speaking, I think that people should basically dress comfortably. My grandfather was a farmer. He would always dress the way he wanted to… in overalls like a farmer. 

      In court cases, I believe that clients should basically dress in something that they normally and comfortably wear and not wear something that they would normally never wear. I think that some lawyers believe that their clients should always be dressed in their Sunday best; and if they don’t own dress clothes, they should buy some. To me, I think people act differently in clothes that they never wear.

    That takes me to why I like to videotape depositions.  In many cases, I will show the video deposition during trial. The jury usually begins watching the deposition. Then, I will sometimes notice when they look over at the defense table where the defendant is now all dressed up. Consciously or unconsciously, I think that it sends the message that the opposing party is trying to project something that they are not.

     After one trial, I even had a juror come up to me with a smile and comment on how “dressed up” the opposing party came for trial. Maybe it’s just my crazy thinking. I also think that videotaping keeps everyone more alert during the deposition and even captures the tone and pauses of the questions and answers.

     As to last week’s deposition,, it will be interesting to see if the opposing party shows up in his usual clothing or if the defense lawyer will decide to make him get “all dressed up”. 

     Hopefully, the defendant will do something to make the jury ask “why”. Then, maybe that will carry over on to the evidence. In every trial there is a truth-giver and someone who is perceived as less. I think being real about appearance might be part of that. There has to be a reason that “a picture is worth a thousand words”.  What do you think?

     For pic o’ day, I stayed with blame and evidence!!

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Coppertone Burned

I was trying to be creative with my Coppertone blog title. The real story (Reuters) is that Merck has agreed to settle a decade old class-action suit over allegations that the company had made false claims about its Coppertone sunscreen products.

Merck purchased the Coppertone franchise in 2009, so it knew that it was taking on this litigation. It now has agreed to pay between 3 and 10 million to settle the claims that were previously brought against Coppertone, but does so with the standard settlement language of  “denied any wrongdoing or liability”.

The lawsuit had been brought on behalf of several consumers.  The lawsuit claimed that Coppertone exaggerated claims about its sunblock sprays and lotions. As part of the settlement, Merck agrees that Coppertone products that are manufactured after June 22,, 2012 will not use the terms “sunblock”, “waterproof”, “sweatproof”, “all day”, and/or “all day protection” in the label, or in the advertising or marketing of its sunblock products.

Those that purchased Coppertone products during the class settlement period are able to claim a refund of $1.50 per purchase. As to the description of the product, I am still wondering what they will now market. How does this sound, “Product to be used for fun at the beach… that’s all” or “How about some Coppertone that doesn’t guarantee”?

For pic o’ day, my mom sent me this one. Good voice marketing!

Baseball Cards in the Attic

     It’s a story about finding the unexpected. It’s better than reaching into the winter coat pocket and feeling a $5 dollar bill. Although, that’s pretty good too.

     Karl Kissner saw a soot-covered cardboard box that had been under a wooden dollhouse, in his grandfather’s attic.  When he looked inside the box, he saw baseball cards with names that were familiar: Hall of Famers Ty Cobb, Cy Young and Honus Wagner. The cards were smaller than the cards he was used to seeing.

     After seeing the box and its contents, he put them down and began going through other boxes in the attic. Later, he took the box to a card authenticator. He was soon thankful that his grandfather, who had died in the 1940’s, had not thrown them away.

     It turns out that these cards are some of the finest examples  from a set known as the E98 series. Based on the initial evaluation, the cards should bring somewhere between $2 and $3 million at auction.  You can click for the full story of the cards above.  A treasure in the attic!     

     When I saw this story, it reminded me of a call that I received a few years back. A collector told me that it had rained through the roof and destroyed all his cards. The cards were insured, but the insurance company was only offering him $18,000 and he thought they were worth a whole lot more.

     Normally, I would not take a case that did not involve an injury. But, I sometimes do take insurance claims and I was also interested in this subject matter. I have a small collection of cards too.

     I traveled down to look at the cards that were now wrinkled and wet from the rain leak. There were several boxes of cards stacked all over a room. Some had dried but they were clearly damaged.

     Initially, I had to file suit. Then, the insurance company agreed to arbitrate the loss. Strategically, I decided to hire an expert and present a case to an arbitrator instead of a jury.

     The defense lawyer and the insurance adjuster put little value or defense, in the client’s cardboard collection. They never did offer more than $18,000. They did base that on some thought process but I can’t remember why.

     My expert put the value of the cards at around $120,000. He also was someone known in the sports collecting field because he regularly wrote a column for a Sports Card Company publication.

     I suspect that you have already guessed that I was pleased with the outcome. Yes… I was! The arbitrator came back with a verdict of $98,000 for the cards.

     My client was disappointed in his card loss but pleased in the result. The insurance company said that they would agree to make payment on the verdict. Then, they wanted the cards as well. Finally, they agreed that they really didn’t want “all those moldy cards”. 

     I found a few that still could be recognized. My client threw almost all of them out but he gave me a couple as a souvenir of our case. It wasn’t a treasure from the attic, but I guess it was “”pennies from heaven” in the form of rain. 

     Pic o’ day is one of those that keeps making me smile. Imagine if you saw this on the neighbor’s porch:

 

Bloomberg’s and AP Hormone Therapy Update

The following is from a Bloomberg News and AP update on Hormone Therapy payments.  Our Firm is still in the middle of this litigation.  Pfizer purchased Wyeth about 2 years ago, which is why it is interchangeable in this article.

The AP (5 1/2, Johnson) reported that Pfizer “recorded charges totaling $472 Million as it reached agreements to settle about one-third of the lawsuits it faces” over whether hormone-replacement therapy (HRT) drugs made by its “Wyeth subsidiary caused breast cancer or other harm to women.”  In an  SEC filing “late Thursday, Pfizer said it took a $172 million charge in the first quarter to cover those agreements, plus verdicts in lawsuits it has lost.”  The pharmaceutical company also “recorded a $300 million charge in the quarter for the minimum expected costs to resolve all of the other outstanding hormone-replacement therapy actions against Pfizer and its affiliated companies.”

Bloomberg News (5/13, Feeley) reports that in February, Pfizer had “agreed to pay about $330 million to resolve 2,200 cases over the menopause drugs, according to people familiar with the accords.”  Overall, Pfizer’s “Wyeth and Upjohn units have lost eight of the fifteen Prempro [conjugated estrogens and medroxyprogesterone] cases decided by juries since trials began in 2006.”

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