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Supreme Court Rejects Calif. Sentencing Law
Court Watch | 2007/01/22 12:17

The US Supreme Court handed down decisions in three cases Monday, including Cunningham v. California where the Court struck down as unconstitutional California sentencing rules that allow judges to exercise discretion to tack on additional years to prison sentences beyond that determined by a jury. The Court overturned a California Court of Appeal decision, holding that California's Determinate Sentencing Law allows judges to impose enhanced sentences based on a judge's, not the jury's, finding of facts and therefore violates the Sixth and Fourteenth Amendments of the US Constitution. Read the Court's opinion per Justice Ginsburg, along with a dissent from Justice Kennedy and a second dissent from Justice Alito.

In the consolidated cases of Jones v. Bock and Williams v. Overton, the Court rejected rules established by the US Court of Appeals for the Sixth Circuit as to when a prisoner can file a lawsuit contesting prison conditions under the Prison Litigation Reform Act of 1995 (PLRA). According to the Court, the PLRA "requires prisoners to exhaust prison grievance procedures before filing suit," but Sixth Circuit rules concerning when a prisoner has exhausted other administrative procedures go too far:

The Sixth Circuit, along with some other lower courts, adopted several procedural rules designed to implement this exhaustion requirement and facilitate early judicial screening. These rules require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such rules. We granted certiorari to resolve the conflict and now conclude that these rules are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role.



Wii Death Lawyer Probes Nintendo Role
Breaking Legal News | 2007/01/22 05:24

Last week, Sacramento mother of three Jennifer Strange entered a radio contest on KDND to try to win a Wii console.  The contest involved drinking large amounts of water. Strange later died of water intoxication.

Sacramento attorney Roger Dreyer told Sacramento Bee, “There isn’t going to be a settlement. There’s going to be a venting in a public forum. That’s what we want, and that’s what the family wants.”

He said the radio station had been “pushing an irresponsible, ill-advised contest” and would be named in the suit alongside employees directly responsible for the promo. He added that Nintendo “might” be named but only if they played a part in the promo.

Although Nintendo has not issued a statement about the tragedy, it seems highly unlikely that the company would knowingly involve itself in such a bad stunt.



Infospace Hit with Ringtone Lawsuit
Venture Business News | 2007/01/22 05:05

Troubled ringtone vendor, Infospace which recently lost on of its largest clients has been hit by a US$100 million lawsuit from the music publisher, EMI. The complaint alleges that InfoSpace and its subsidiaries Moviso and Premium Wireless Services have been underpaying royalties and selling ringtones for songs to which they hold no licensing rights.

The lawsuit also claims that InfoSpace has "engaged in a deliberate effort to frustrate and obstruct the audit rights held by plaintiffs pursuant to license agreements."

EMI says that it had requested an audit of InfoSpace's accounts to ensure accurate royalty payments but was met with "diversion, obstruction, misdirection and misinformation." Specifically, EMI alleges that InfoSpace claimed it did not have access to many of its records, and then refused to turn them over.

EMI claims it turned over information it acquired to its auditors at Gelfand Rennert & Feldman, who concluded that InfoSpace was miscalculating royalties due to downloads through third-party Web sites operated by cell phone carriers Verizon and US Cellular; failing to report royalties for eight approved sub-licensees; and failing to pay royalties for compositions that appeared on its catalogue of offerings.

InfoSpace also says that it will announce fourth quarter 2006 financial results on Thursday, February 1, 2007, after market close.



US Aids group to sue Pfizer over Viagra ads
Breaking Legal News | 2007/01/22 04:59

A major U S AIDS treatment group plans to file a lawsuit today that accuses drug giant Pfizer Inc. of illegally promoting recreational use of its impotence pill Viagra. The AIDS Healthcare Foundation told Reuters it wants Pfizer to be barred from marketing Viagra as a lifestyle or sexual enhancement drug. The nonprofit organization said Pfizer's actions had led to risky behavior by men and an increase in HIV and other sexually transmitted diseases.

"Pfizer has created and contributed to the perception of Viagra as a safe, sexy, lifestyle, recreational drug, to be frequently used regardless of the degree, or even existence of" erectile dysfunction, the group said in draft legal documents.

Pfizer, the world's largest drug maker, said it was committed to appropriate Viagra use and urged men to see a doctor for a proper diagnosis. The drug is sold by prescription.

The AIDS Healthcare Foundation, in its legal arguments, pointed to several Viagra promotions from recent years, including a 2005 newspaper ad that featured a smiling man asking, "What are you doing on New Year's Eve?"

Another ad that ran near the 2006 Super Bowl urged men to "Be this Sunday's MVP" and ask their doctors about Viagra.

Pfizer's Viagra website asks readers, "Want to improve your sex life?" and says the drug can help men who have erection difficulties "once in a while."

Healthcare foundation president Michael Weinstein said the promotions made Viagra sound like a "party drug" that can make sex more pleasurable for healthy men -- a claim the Food and Drug Administration has not approved.

Men in the ads also look much younger than Pfizer's earlier Viagra pitchman, former Kansas Senator Bob Dole, who is now 83, he said.

"Bob Dole has been replaced by the hunky 40-something guy who looks like he can really have a good time," Weinstein said in an interview. "The message they are sending out is that any and every male should take it," he said.

Studies show evidence of recreational Viagra use among men who have sex with men, sometimes to overcome the erection-inhibiting effects of alcohol or street drugs such as ecstasy and crystal methamphetamine, the AIDS Healthcare Foundation said.

The group asked Pfizer repeatedly to alter its ads, Weinstein said.

In 2004, the FDA objected to a television commercial suggesting Viagra could return a man to the "wild thing" of his younger days. The FDA said the ad, showing a man sprouting devilish horns, made an unproven claim that men could regain a youthful level of sexual desire. Pfizer halted that campaign.

The AIDS Healthcare Foundation's lawsuit, to be filed in Los Angeles Superior Court, asks that Pfizer be prohibited from running similar messages and ordered to fund awareness ads about sexually transmitted disease risks and Viagra.

The suit also requests that Pfizer turn over profits gained from misleading ads and pay the AIDS Healthcare Foundation's costs of treating AIDS and other illnesses linked to Viagra use.

California-based AIDS Healthcare Foundation runs AIDS clinics in the United States, Africa, Latin America, the Caribbean, and Asia that provide medical care and services to more than 53,000 people even if they cannot pay.

Pfizer spokeswoman Shreya Prudlo said the company was not aware of the lawsuit. She said Pfizer "has always been committed to safe and appropriate use of Viagra" and that the drug's label and promotions stated "Viagra does not protect against sexually transmitted diseases, including HIV."

Sales of Viagra, known generically as sildenafil, reached $1.6 billion worldwide in 2005.



Prosecutor in Apple Case Joins Law Firm
Legal Business | 2007/01/21 14:20

Christopher J. Steskal, a lead prosecutor of a federal task force investigating the backdating of stock options at Apple Inc. and other companies, is leaving his San Francisco post to join a law firm, the United State Attorney’s office in San Francisco confirmed late Friday.

Mr. Steskal’s decision follows the recent resignation of his boss, United States Attorney Kevin V. Ryan.

Mr. Steskal also was the lead prosecutor in the government’s case against Gregory L. Reyes, the former chief executive of Brocade Communications Systems.

Mr. Steskal, who was to try Mr. Reyes’s case in June in San Francisco, is the second of five assistant United States attorneys on the task force to leave since its formation in July. He said he would join the San Francisco office of Fenwick & West within 30 days.

William J. Portanova, a criminal defense attorney and former federal prosecutor, said that he believed that the Brocade case would not suffer, no matter who is picked to succeed Mr. Steskal.

“The government has people stacked up ready to pick up the case and run with it,” he said.

Luke Macaulay, a spokesman for the United States Attorney’s office in San Francisco, said that one of two prosecutors the office is planning to hire would replace Mr. Steskal on the task force.



Iraqi draft oil law to offer oil transparency
International | 2007/01/21 05:02

An Iraqi cabinet-level committee proposed a draft law Friday that would allow the national government in Iraq to control oil revenues. Negotiations concerning the draft law have been a source of tension in Iraq for months as most Kurds and many Shiites want to retain control of the country's oil resources. On the other hand, Sunni Arabs, who do not dominate the oil-rich regions of the country, insist on central oversight.

Recent debate has centered on the establishment of a federal committee, called the Federal Oil and Gas Council, to review oil contracts. Kurds did not want to give the committee the power to "approve" contracts, so the draft law instead allows regions to initiate and guide the process of awarding oil contracts and gives the committee the power to review and reject contracts. The Iraqi cabinet and the country's parliament must approve the draft before it becomes law. If the draft passes, enforcement might prove difficult in Iraq's wartime environment.



Mexico extradites cartel kingpins to US
International | 2007/01/20 14:53

Mexico extradited drug kingpins Osiel Cardenas and Hector "El Guero" Palma and thirteen other major traffickers to the United States Friday as part of an effort by new Mexican president Felipe Calderon to follow through on a promise made by former President Vincente Fox to make increased extraditions to the US. Since taking office, Calderon has mobilized elite police and military forces against the rival Sinaloa and Gulf Cartels. Although the widely popular initiative is showing initial success, experts warn that Calderon must address the political and judicial corruption that allows cartels to run rampant in Mexico.

Kingpins are often able to continue running their organizations from within corrupt Mexican prisons, making the extradition of leaders a key tool for scaling back cartel activity. In November 2005, the Supreme Court of Mexico ruled that prisoners serving life sentences can be extradited abroad, overturning a 2001 decision that prevented such prisoners from answering to charges in the US insofar as punishment there might be cruel and unusual and not directed at rehabilitation of the prisoner. A 1978 treaty between the US and Mexico still prevents the extradition of prisoners who face the death penalty.



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