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Court Strikes Down Longer Hours for Truckers
Breaking Legal News | 2007/07/25 06:58
A federal appeals court on Tuesday struck down a Bush administration rule that loosened the work hours of truck drivers after concluding that officials had failed to justify the changes adequately. In a unanimous decision, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit said that the federal agency that oversees the truck industry did not provide enough evidence to demonstrate the safety of its 2005 decision to increase the maximum driving hours of truck drivers. The hours of service were increased to 77 from 60 over 7 consecutive days, and to 88 hours from 70 over 8 days.

The court found that the agency, the Federal Motor Carrier Safety Administration, a unit of the Department of Transportation, had ignored the results of a database it commissioned to catalog more than 50,000 truck accidents from 1991 to 2002. Using the data, the study extrapolated that the risk of fatigue-related accidents would be substantially higher in the extra hours of service allowed by the new rules.

“F.M.C.S.A. failed to provide an adequate explanation for its decision to adopt the 11-hour daily driving limit,” the court said.

The new rules had been adopted after heavy lobbying by politically connected leaders of the trucking industry. The changes were part of the broader strategy by the Bush administration to reduce regulations on businesses.

Safety experts and insurance analysts challenged the changes. They said longer driving hours have contributed to the high number of truck accidents. About 100 people die each week in truck-related accidents, making trucking America’s most treacherous industry as measured by overall deaths and injuries.

Supporters of the loosened standards say they have made it faster and cheaper to move goods across the country. They say the changes promote safety because shorter hours would force the industry to put more drivers with little experience behind the wheel. And they note that the fatality rate, or the number of deaths per miles traveled, has continued a long decline.

Still, the fatality rate for truck-related accidents remains nearly double that involving only cars. And the Bush administration has repeatedly missed its own targets for reducing the number of fatalities from truck accidents.

The decision today came in a case filed by Public Citizen, a consumer advocacy group. It was the third time in three years that the courts have been critical of the motor carrier agency.

A different appeals panel criticized the agency in December 2005 for failing to issue adequate rules for the training of drivers, saying the agency had ignored its own studies on the need for more comprehensive training.

And in 2004, a third panel of the appeals court struck down virtually identical new hours of service rules as the ones at issue in Tuesday’s decision, saying that they had been “arbitrary and capricious.”

After Congress, at the urging of the Bush administration and the trucking industry, intervened to block the enforcement of the 2004 court order, the motor carrier agency issued the 2005 rules. At the time, the agency said it had addressed the concerns raised by the appeals court’s 2004 decision.

In a regulatory impact analysis accompanying the 2005 changes, the agency concluded that the economic costs to the industry of tightening the hours of service rules, as consumer groups had proposed, outweighed the safety benefits.

But the court said today that analysis was flawed. The opinion was written by Judge Merrick B. Garland and signed by Chief Judge Douglas H. Ginsburg and Judge Karen Lecraft Henderson.

Safety groups hailed Tuesday’s ruling and said the court had confirmed their view that the agency had failed to adequately justify relaxing the rules.

“The court is saying once again, no,” said Jacqueline S. Gillan, vice president of Advocates for Highway and Auto Safety, an alliance of consumer, health and insurance organizations. “For three and a half years this agency has tried every which way to defend a rule that would result in longer consecutive driver hours and longer total work hours. This has a dramatic dangerous impact on the lives of truck drivers and on the lives of everyone sharing the roads with trucks. And once again the court has said, ‘No, you cannot go ahead with a rule when it violates the law and you clearly have not justified it.’ ”

The agency would not say whether it would appeal the decision or seek a stay of the court’s order, which is set to go into effect in September.

“We are analyzing the decision issued today to understand the court’s findings as well as determine the agency’s next steps to prevent driver fatigue, ensure safe and efficient motor carrier operations and save lives,” said a statement issued by the agency.

The American Trucking Associations, which defended the changes to the rules in the proceeding, said they would ask the court to stay its ruling to give the agency time to provide a better justification of the changes.



Ex-Newark Mayor Pleads Not Guilty to Corruption
Breaking Legal News | 2007/07/24 08:48
At his arraignment in federal court Monday, former Mayor Sharpe James pleaded not guilty to corruption charges and then listened as one of his lawyers defended himself against allegations that it would be a conflict of interest if he remained part of Mr. James’s defense team. Prosecutors told Judge William J. Martini of United States District Court that the lawyer, Thomas R. Ashley, had represented two other people involved in the case against Mr. James and his companion, Tamika Riley.

Mr. James is accused of charging more than $58,000 in personal expenses on city-issued credit cards during his two decades as mayor and of selling city land at below market rates to Ms. Riley, who the authorities said then resold the property at an enormous profit.

Judith Germano, an assistant United States attorney, told Judge Martini that Mr. Ashley represented someone referred to in the criminal complaint as “Individual 1.” The person, who is not named in the indictment but who is “close to both defendants James and Riley,” lent $10,000 to Ms. Riley to help her pay for several properties in Newark and later received checks from Ms. Riley, according to prosecutors.

Ms. Germano said the other person Mr. Ashley represented was “an attorney in a number of real estate transactions” that are part of the case. In response, Mr. Ashley said, “I don’t see that there’s a conflict.” The judge told Ms. Germano to submit a brief with her concerns.

During the hourlong court appearance, Mr. James, 71, wearing a dark blue suit, smiled and seemed relaxed, limiting himself before and after the hearing to a single, repeated comment to reporters: “God is good all the time.” He and Ms. Riley, 38, who also pleaded not guilty, waived their right to a speedy trial.

Ms. Riley, whose relatives sat in the small, packed gallery, looked more anxious than Mr. James. She wore a black suit, flipped through legal papers, and did not smile.

Prosecutors said the evidence against Mr. James and Ms. Riley was largely contained in 40 banker’s boxes, each holding roughly 200 documents. Perry Primavera, a special assistant United States attorney, said that the prosecution would call about 60 witnesses, and that the trial would last about 12 weeks. The trial is tentatively set to begin in early February.

Mr. Ashley, a well-known criminal defense lawyer here, once represented Mr. James’s chief of staff, Jackie R. Mattison, who was found guilty in 1997 of taking bribes. After Monday’s court hearing, Mr. Ashley said of the prosecutors: “I didn’t know they were going to try to have me removed. I anticipated it could be an issue. They were never too happy with my representation.”

In court, Ms. Germano said that Mr. Ashley himself could be called as a witness in the case, to give evidence about a personal trip Mr. James and his companions made to Martha’s Vineyard in 2003, which prosecutors said cost the city of Newark more than $3,500.



Court grants evidence to Guantanamo lawyers
Breaking Legal News | 2007/07/21 11:53
A federal appeals court on Friday ruled lawyers for Guantanamo prisoners should have access to nearly all government evidence so they can challenge detainees' designation as "unlawful enemy combatants." The unanimous ruling by a three-judge panel of the U.S. Court of Appeals in Washington was a blow to the Bush administration's attempt to limit the lawyers' access to only the evidence presented to a U.S. military tribunal that made the determinations. The ruling came on the same day President George W. Bush ordered the CIA to comply with Geneva Conventions against torture in dealing with detainees held at Guantanamo Bay, Cuba and secret CIA prisons elsewhere.

"Contrary to the position of the government, the record on review consists of all the information a tribunal is authorized to obtain and consider," the court ruling stated.

The court also ruled that detainees' lawyers should have access to classified information relating to clients' cases. "Certain highly sensitive information" may be withheld from the lawyers, but not from the court, the judges ruled.

Lawyers for the detainees argued in mid-May that being able to review all documents compiled by the U.S. government, not just those presented to the military tribunal, could help them clear the detainees, some of whom have been jailed for more than five years.

There are about 385 detainees at Guantanamo, which was set up to handle prisoners captured by the United States following the September 11 attacks.

U.S. government attorneys have argued that any evidence that could help clear prisoners would have been turned over to the military tribunal that made the "unlawful enemy combatant" determination.

In rejecting that argument, the court ruled that an adequate review of the tribunal's determination cannot be made "without seeing all the evidence, any more than one can tell whether a fraction is more or less than one-half by looking only at the numerator and not at the denominator."

The court also rejected the government's position that lawyers should only have one eight-hour visit to Guantanamo to obtain approval from a prisoner to represent him.

The judges said a second visit would allow the lawyer "time to earn the detainee's trust."

Democrats in Congress are considering legislation calling for closing the Guantanamo prison, arguing indefinite detentions and allegations of prisoner mistreatment, which the military denies, is hurting the United States' reputation abroad and stoking potential acts of terrorism.



Ga. top court finishes hearing Wilson's appeal
Breaking Legal News | 2007/07/21 10:55

The Georgia Supreme Court heard arguments Friday morning on a pair of appeals in the closely watched Genarlow Wilson case, though no ruling was expected immediately. The courtroom was packed for the hearing, and arguments were broadcast live over the Internet. The hearing came after justices decided earlier this month to speed up the process in the case of Wilson, the Douglas County man imprisoned for receiving oral sex from a 15-year-old girl when he was 17. Wilson's attorneys argue his 10-year prison sentence is cruel and unusual punishment.

The justices are considering two appeals in the case.

Georgia Attorney General Thurbert Baker is appealing a Monroe County Superior Court judge's decision to reduce Wilson's felony conviction to a misdemeanor and free him from prison. Baker said the judge overstepped his authority when he granted Wilson's motion last month.

Following the Monroe County judge's decision, Wilson's attorneys requested he be released on bond pending Baker's appeal, but on June 27, the trial court in Douglas County denied the request. Wilson's attorneys have appealed that decision.

B.J. Bernstein, Wilson's attorney, addressed the bond issue first at Friday's hearing, arguing for 10 minutes that her client should be granted bond while his case is under appeal.

"Every day that a defendant spends in jail is a precious day in their life," Bernstein told the justices. Bernstein said that in the past 10 days, "two clients of mine died in prison."

Bernstein argued that the trial court, in refusing bond, improperly applied the criminal appeal bond statute when it should have applied the habeas bond statute, since the Monroe County judge had ruled on a writ of habeas corpus, determining that Wilson had the right to make a claim of cruel and unusual punishment.

However, Douglas County District Attorney David McDade, the original prosecutor on Wilson's case, countered in his time before the justices that state law is clear that "no appeal bond shall be granted to any person who is convicted of a list of crimes, and aggravated child molestation is included in that list."

"It's not vague. It's not gray. It's not subject to interpretation," McDade said. "It is the plain letter of the law that applies in this case."

In its appeal of the reduction of the felony conviction to a misdemeanor, the state has argued that the ruling could open the door for many other sexual criminals to have their sentences reduced.

Wilson's attorneys argued that such fears are invalid and do not justify maintaining such a harsh sentence for consensual teen sex.

Video cameras and still photographers lined the walls well before the arguments began. Outside, satellite trucks and Georgia State Patrol cars were parked all along the street, and security was high. Officers were posted all around the building and on the floor where the Supreme Court meets.

Former state Rep. Matthew Towery, the author of the 1995 law Wilson was charged with violating, submitted a friend of the court brief supporting his release.

"The General Assembly never intended for the Child Protection Act's harsh felony sentences designed to punish adults who prey on children to be used to punish consensual sexual acts between teenagers close in age," Towery's brief said.

The state Legislature in 2006 changed the law, making oral sex between teens close in age a misdemeanor. The state Court of Appeals ruled that the new lasaveClicked(kSaveBtn,null,true)w could not be applied retroactively and the state Supreme Court upheld that ruling.

Bernstein argued in her legal brief that the move by state lawmakers to change the law marked a "tectonic shift in how Georgia views voluntary consensual teen sex and its punishment."

"The new reality is that teen sexual experimentation is commonplace in an era where the media bombards teens with sexual imagery," she wrote.

Bernstein said it is extremely rare in Georgia for lawmakers to pass legislation softening punishment, especially for an emotionally charged crime like child molestation.

But the state countered that it is well established that criminals are subject to the penalty that is in place when they violate the law. To begin to apply legislative changes retroactively would invite chaos and have a far-reaching effect throughout the criminal justice system, Baker argued.

"The decision in this case not only affects Petitioner, but it potentially affects countless others who may be in the prison system or on probation or who have completed their sentences," he wrote.



Court Gags Broadway Beast Actor's Lawyer
Breaking Legal News | 2007/07/20 01:04

A lawyer for a Broadway actor accused of having sexual contact with a 15-year-old girl may not publicize the teen's name in an effort to learn whether she has falsely accused anyone of molesting her, an appeals court ruled Thursday. The appeals court rejected the attempt by lawyer Ronald P. Fischetti to lift the limited gag order imposed on him by the judge who is overseeing the sex abuse case of actor James Barbour, who played the beast in Disney's "Beauty and the Beast."

Fischetti told a lower court judge the district attorney's office set up a telephone hot line to receive calls about Barbour and he wanted to do something similar.

"I want to put up a hot line with her (the victim's) name on it (and place it) in the newspapers," Fischetti said. "We believe that this alleged victim has made these false allegations before."

The court upheld the judge's decision not to allow it, saying that Fischetti had shown no good faith basis for suggesting the girl had a history of falsely accusing anyone. It said that without such a showing, the policy interest of having sex crimes victims come forward without fear of exposure "outweighs what would amount to a fishing expedition."

Barbour, 40, pleaded not guilty in December to charges of sexual abuse and criminal sex act against the girl, a fan and aspiring actress, in 2001.

Barbour was starring in "Jane Eyre," and a high school drama teacher arranged for the girl and her parents to see the musical. The girl, now 20, went backstage alone after the show, and Barbour began touching her sexually, prosecutors said.



Patent Reform Bill Moves Forward in U.S. House
Breaking Legal News | 2007/07/19 10:00

Tech has a friend in the house. In a unanimous voice vote, the U.S. House Judiciary Committee this week endorsed patent-reform legislation, which the tech industry has been pushing for decades. The Patent Reform Act of 2007 would allow a second review of patents after they have been granted to challenge the validity of a newly issued patent. The bill would also narrow the definition of willful infringement, which brings treble damages in infringement lawsuits. The legislation also calls for limiting infringement damages to the economic value of the patent's contribution to an overall product. Currently, damages are based on the entire market value of the product.

The bill also implements a first-to-file standard consistent with international practice.

"Intellectual property industries not only drive a significant part of the American economy, but also provide millions of Americans with well-paying jobs," bill co-sponsor Lamar Smith (R-Texas) said in a statement. "The Patent Reform Act protects intellectual property by addressing critical weaknesses in the current law and eliminating the legal gamesmanship that rewards lawsuit abuses over creativity."

The bill now goes before the full U.S. House for an as yet unscheduled floor vote. Similar legislation is pending before the Senate Judiciary Committee, which has a vote scheduled on the bill Thursday.

Since the legislation was first introduced in April, the pharmaceutical, bio-technology and manufacturing companies have lined up to oppose the key portions of the legislation.

Wednesday, though, that opposition seemed to be lessening.

"The leadership and several members of the committee recognized that changes to the bill are still necessary and we look forward to working with them to further improve the bill," 3M's Gary Griswold, representing the Coalition for 21st Century Patent Reform, said in a statement. "While there is still much work to do before the coalition can support the legislation, we are encouraged by the incremental progress made during today's mark-up."

Griswold added that while the group, which includes Eli Lilly, General Electric, Johnson & Johnson and Proctor & Gamble, still has "serious concerns" about the bill, amendments to it approved Wednesday were a "positive step." The amendments narrow the "second window" of post-grant reviews.

Last week, the Senate Judiciary Committee approved much the same amendments.

According to Sen. Patrick Leahy, infringement damages would be limited, "unless the claimant shows that the patent's specific contribution over the prior art is the predominant basis for market demand for an infringing product or process."

Sen. Arlen Specter (R-Penn.) added an amendment that seeks to eliminate the popular practice of "forum shopping" by limiting venues for patent-infringement cases.

"Few issues are as important to the economic strength of the United States as our ability to create and protect intellectual property," Smith said. "The Patent Reform Act of 2007 updates current law to better protect intellectual property, enhance patent quality and increase public confidence in the integrity of patents."



Microsoft Hit With A Second Xbox 360 Class Action Suit
Breaking Legal News | 2007/07/19 07:02

Microsoft has been hit with a new class action lawsuit alleging that the company's Xbox 360 console damages game discs.

"Microsoft improperly and/or negligently manufactured the Xbox 360 console in a manner that causes the expensive game discs ... to be scratched, rendering the games unusable," the suit alleges.

The complaint was filed Monday in the U.S. District Court for Southern California by two residents of the state: Christine Moskowitz and Dan Wood. The suit is seeking not less than $5 million in damages for Xbox 360 buyers affected by the alleged glitch.

Microsoft was slapped with a similar action last week in a Florida court.

In the California court filing, Moskowitz says that in March 2006 she purchased for her son an Xbox 360, along with the popular games Gears of War, Crackdown, and Saints Row. Within a few months, the games bore circular scratch marks and wouldn't work properly, Moskowitz claims. Wood says he purchased an Xbox 360 last December and the unit soon damaged his copy of Tom Clancy's Splinter Cell.

Both plaintiffs claim that the Xbox 360 console damaged their discs and that Microsoft refused to replace the ruined games or pay for them.

Earlier this month, Microsoft acknowledged that a hardware defect in the console was leading to what the company called "an unacceptable number" of general hardware failures. To deal with the problem, Microsoft said it would extend the warranty period on the units by three years, at a cost of between $1.05 billion and $1.15 billion.

The company made no mention of a disc scratching problem, however.

On Tuesday, Microsoft announced that Xbox division head Peter Moore was leaving the company to take a position at games publisher Electronic Arts.

In their lawsuit, Moskowitz and Wood argue that Microsoft's scramble to get a next-generation video game system into the market to compete with those from rivals Sony and Nintendo is at the root of the Xbox 360's problems. "Microsoft's rush to market, while positive for Microsoft, was detrimental to consumers because the Xbox 360 suffered from numerous hardware defects," the suit claims.

Responding to the Florida lawsuit, a Microsoft spokesman told InformationWeek that the company has not received a significant number of complaints about scratched discs, despite the fact that "there are millions of Xbox consoles in use."



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Class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule. Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. They can construct your law firm a brand new website, lawyer website templates and help you redesign your existing law firm site to secure your place in the internet.
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