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FCC Chair Seeks To Move Telecom Merger Forward
Breaking Legal News | 2006/12/02 17:59

Federal Communications Commission (FCC) Chairman Kevin Martin has asked the FCC general counsel to consider whether one commissioner with a potential conflict of interest may be allowed to consider a proposed $82.2 billion merger of BellSouth and AT&T. The merger has been delayed three times as the proposal has failed to gain approval from a majority of the five FCC commissioners. Republicans hold a 3-2 advantage, but voting has been deadlocked at 2-2 as Republican Commissioner Robert McDowell, a former lobbyist, recused himself from voting due a conflict of interest. Martin took steps to break the stalemate Friday, notifying Congress of his petition to the FCC general counsel. Title 18, Section 208 (b) of the US Code would allow the general counsel to reinstate McDowell if "the interest of the Government in the employee's participation outweighs the concern that a reasonable person may question the integrity of the agency's programs and operations."

The merger has already been approved without reservation by the US Department of Justice Antitrust Division following an eight-month investigation that concluded that AT&T's proposed acquisition of BellSouth was not likely to "substantially reduce competition" in the US telecom market. In an October letter, the Democratic FCC commissioners said that serious questions remained about whether the merger would serve the public interest, especially against the backdrop of other forms of consolidation and concentration in the telecommunications industry.



Video Game Industry Wins Two More Legal Battles
Breaking Legal News | 2006/12/01 09:48

The Entertainment Software Association, the trade group representing video game companies, won two more legal battles this week against laws aimed at restricting the sale of violent games to minors. On Tuesday, the US Court of Appeals for the Seventh Circuit upheld the 2005 ruling that the "Safe Games Illinois Act" was unconstitutional. The appeals court agreed that the labeling requirements and restrictions on the sale of objectionable games to minors were overbroad and not narrowly tailored.
Under the original district court order in the case, Illinois also owes the ESA over $500,000 in legal fees - an amount which has not been paid. A spokesman for Illinois Governor Rod Blagojevich said the state "will comply with any court order" but didn't provide a timetable for payment or a reason for the delay. The ESA has gone to court to request a deadline for payment and is seeking an additional $7,800 in interest; a ruling on their motion is expected next month.

The US District Court for the Middle District of Louisiana has meanwhile delivered a similar victory for the ESA, ordering a permanent injunction against a Louisiana law that would ban the sale of violent video games to minors. Judge James Brady made the ruling from the bench with no written opinion; in issuing a temporary injunction in August, he wrote "the evidence that was submitted to the legislature in connection with the bill that became the statute is sparse and could hardly be called in any sense reliable". Assistant Attorney General Burton Guidry said "We did everything we could to defend the law, but, as the judge said, the law was practically unenforceable as written". Outspoken video game critic Jack Thompson had drafted the law, although he later feuded with Guidry over the case and even accused Guidry of not adequately presenting the government's side.



Miami Hospital Pays $15.4 Million to Resolve Fraud Case
Breaking Legal News | 2006/11/30 12:40

Larkin Community Hospital in Miami and its current and former owners, Dr. Jack Michel, Dr. James Desnick, Morris Esformes and Philip Esformes, have paid $15.4 million to settle federal and Florida civil health care fraud claims against them, the Justice Department announced today. Additionally, 34 related companies owned by the Esformes that were used to operate nine assisted living facilities are part of the settlement along with Claudia Pace, an employee of one of the Esformes-owned companies; and Frank Palacios, a long-time employee of the hospital.

The settlement resolves the civil case entitled United States v. Jack Jacobo Michel, M.D., et al., which the government filed in 2004, alleging violations of the False Claims Act. The state of Florida joined the suit later that year.

The government alleged that in 1997, Larkin, then owned by Desnick, paid kickbacks to physicians in return for patient admissions. The United States contended that the primary recipient of the kickbacks was Jack Michel, who was paid for patient admissions to Larkin by himself and his brother, Dr. George Michel. Jack Michel purchased Larkin in 1998. In 2000, Desnick was a party to a $14 million settlement with the United States for a similar kickback scheme from 1992 to 2000 at another facility he owned, Doctors Hospital of Hyde Park in Chicago.

The United States also alleged in the Michel suit that from 1998 to 1999, Jack Michel, George Michel, Morris Esformes, Philip Esformes, Frank Palacios and Claudia Pace conspired to admit patients to Larkin for medically unnecessary treatment. The government asserted that some of these patients came from assisted living facilities owned and operated by Jack Michel, Morris Esformes and Philip Esformes.

"The Department of Justice is committed to vigorously litigating cases about conduct that undermines the integrity of the Medicare and Medicaid programs," said Peter D. Keisler, Assistant Attorney General for the Department's Civil Division. "We will not tolerate health care providers who pay kickbacks or perform medically unnecessary treatments on elderly beneficiaries in order to generate Medicare and Medicaid payments."

The case was investigated by the U.S. Department of Health and Human Services, Office of Inspector General; the Federal Bureau of Investigation; and the Florida Medicaid Fraud Control Unit. The case was handled by the Justice Department's Civil Division, the U.S. Attorney's Office for the Southern District of Florida in Miami and the Office of the Attorney General of the state of Florida.



Supreme Court to hear Global Warming case
Breaking Legal News | 2006/11/29 18:16
The US Supreme Court heard oral arguments Wednesday in Massachusetts v. EPA, 05-1120, a case where 12 states and several environmental groups are challenging an Environmental Protection Agency (EPA) determination that it does not have the authority under the Clean Air Act (CAA) to regulate the emission of "greenhouse gases," such as carbon dioxide, by automobiles.

The petitioners argued that the unfettered emission of greenhouse gases causes irrevocable damage to the environment through the erosion of coastal land. Questions remain, however, whether the petitioners have sufficiently satisfied the burden of proving that the EPA's failure to regulate caused any harm. Chief Justice John Roberts and Justice Samuel Alito appeared most reluctant to accept the petitioners' arguments, noting that EPA regulation of automobiles would have little impact on the overall emission of greenhouse gases.

Lawyers representing the EPA pointed to the substantial effect on the economy that regulation would cause. Additionally the federal government lawyers argued the Bush administration's position that the EPA would not restrict emissions even if it had the authority under the CAA because scientific evidence of the effect of greenhouse gases on global warming is too uncertain. Massachusetts v. EPA is the first case concerning global warming to come before the Supreme Court.

Neal Andrea
Staff Reporter


Department of Justice Settles Discrimination Lawsuit
Breaking Legal News | 2006/11/29 11:37

WASHINGTON – The Department of Justice today reached a settlement in a case against Beaulah Stevens alleging housing discrimination on the basis of race or color in renting properties owned and managed by the defendant in Saraland, Ala.

The government’s complaint alleged that the defendant violated the federal Fair Housing Act when she discriminated against the victim, Michele Jones, upon learning that her child is biracial and that she associated with African Americans. The complaint also alleged that two fair housing tests conducted by the Mobile Fair Housing Center (now known as the Center for Fair Housing, Inc. of Mobile, Ala.) showed that the defendant treated white testers who inquired about the availability of units for rent more favorably than African American testers.

“The intent of the Fair Housing Act is to provide all Americans equal access to housing unencumbered by the pernicious obstacle of racial discrimination,” said Wan J. Kim, Assistant Attorney General for the Civil Rights Division. “This type of racial discrimination is against the law and will not be tolerated.”

“This case shows that the Department of Justice and this office believe that housing discrimination is a serious violation of the law,” said Deborah J. Rhodes, U.S. Attorney for the Southern District of Alabama. “We will enforce federal laws against racial discrimination.” The case was initiated when Ms. Jones filed a fair housing complaint on behalf of herself and her daughter with the U.S. Department of Housing and Urban Development (HUD). After investigating the matter, HUD issued a charge of discrimination, and the matter was referred to the Justice Department, which filed the lawsuit in May 2005.

“HUD commends the Department of Justice's ongoing commitment to enforcing this nation's fair housing laws,” said Kim Kendrick, HUD's Assistant Secretary for Fair Housing and Equal Opportunity. “No one should be denied housing because of his or her race or because of the race of any member of that household. This settlement was not just a victory for this mother and daughter, but it was a greater victory for the principles of justice and equality.”

The settlement, which must be approved by the U.S. District Court for the Southern District of Alabama, resolves the government’s case as well as the related claims of Ms. Jones and Angela Macon, a neighbor of Ms. Jones, both of whom intervened in the government’s lawsuit. Under the settlement, the defendant has agreed to pay more than $40,000 in damages and penalties; to post a nondiscriminatory rental policy; to undergo training on the requirements of the Fair Housing Act; and to submit periodic reports to the Justice Department.

Fighting illegal housing discrimination is a top priority of the Justice Department. In February 2006, Attorney General Alberto R. Gonzales announced Operation Home Sweet Home, a concentrated initiative to expose and eliminate housing discrimination in America. This initiative was inspired by the plight of displaced victims of Hurricane Katrina who were suddenly forced to find new places to live. Operation Home Sweet Home actively targets housing discrimination all over the country.



State judge allows Iraq wrongful death suit
Breaking Legal News | 2006/11/28 09:24

A North Carolina state court judge Monday ruled that a wrongful death lawsuit brought by the families of four US contractors killed in Iraq against Blackwater Security Consulting could move forward after being stayed for nearly two years. The company has argued that the case should be litigated in federal court, but the US District Court hearing the dispute remanded the case to state court. That decision was upheld  by the US Court of Appeals for the Fourth Circuit, and Blackwater's lawyers are preparing to ask the US Supreme Court to consider the case.

In October, Chief Justice John Roberts refused to issue a stay pending appeal. Lawyers for Blackwater have argued that cases against the contractor should be dismissed because the security firm is an extension of the military. An undersecretary of the US Army denied any legitimate ties between Blackwater and the military in her testimony in a congressional hearing two months ago

The lawsuit, filed in January 2005, alleges that Blackwater did not provide the four men with the proper weaponry or personnel to defend themselves when they encountered a group of insurgents who attacked their supply convoy in March 2004. The videotaped ambush showed the four men being burned and tortured.



Romanian Citizen Pleads Guilty to Smuggling Aliens
Breaking Legal News | 2006/11/27 18:52

A Romanian citizen who resides in Davenport, Fla., has pleaded guilty to a charge of inducing aliens to enter the United States illegally, Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Attorney Paul I. Perez for the Middle District of Florida announced today.

Constantin C. Durbalau, 30, entered the plea today before U.S. District Judge Anne C. Conway at the federal court in Orlando.

In his plea agreement, Durbalau admitted that during the past three years he personally helped as many as 24 Romanians enter or remain in the United States through fraudulent means. As part of this scheme, Durbalau and another individual prepared fraudulent visa applications for the aliens that falsely stated that they were circus performers coming to work in Florida circuses. In fact, the aliens were not circus performers and were not needed at any of the circuses listed in the applications. Rather, the visa applications were simply a means for the aliens to enter or remain in the United States and were provided by Durbalau in return for a fee of between $2,000 and $3,500 per alien. As part of his plea agreement, Durbalau agreed to be removed to Romania upon the completion of his prison sentence. Sentencing is scheduled for Feb. 12, 2007. Durbalau also agreed to forfeit to the United States approximately $50,000 he earned in smuggling fees.

The case was investigated by the U.S. Department of State’s Bureau of Diplomatic Security, and U.S. Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services at the Department of Homeland Security. The case was prosecuted by Assistant U.S. Attorney Cynthia Hawkins of the U.S. Attorney’s Office for the Middle District of Florida and Trial Attorney Arlene Reidy of the Domestic Security Section of the U.S. Department of Justice.



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