Category Archives: National Courts

Chicago Pizza, RICO and the Politics of Development

Ye Olde Town Inn owner Tod Curtis

Via the Chicago Tribune, the village of Mount Prospect, Illinois has agreed to pay $6.5 million to settle a lawsuit by a restaurant owner who has operated a pizzeria in the village for over 40 years.

The plaintiff cited a federal civil racketeering law, more commonly used to bust organized crime, when he filed his lawsuit in 2008 accusing the village of trying to force him out of his downtown business to make way for a new development project.

The lawsuit named the village and Oz Development LLC in alleging that they collaborated to try to push the plaintiff out, violating the federal Racketeer Influenced and Corrupt Organization Act.

The case settled on the verge of trial and after a federal judge entered a judgment of $2.1 million against Oz Development last month.

Advertisements

Courts, States remain Divided over Cell Phone Searches

The New York Times today reviewed the state of the law regarding the legality of law enforcement searches of cell phones without warrants today.

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

(…)“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.  A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.

Recently, in Rhode Island, in the case of State v. Patino, C.A. No. 10-1155, Rhode Island Superior Court Judge Judith C. Savage ruled that Michael Patino, a man accused of the 2009 killing of his girlfriend’s 6-year-old son, (1) had a reasonable expectation of privacy in his text messages and (2) that evidence from his cell phone was collected illegally, before police obtained search warrants.

The Court also ruled that because of the illegal search, almost all the evidence obtained by police – including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police – was tainted and could not be used at trial.

“Cell phones have replaced telephones. People send and receive billions of text messages to and from their cell phones daily. Text messaging, especially among young adults, has become an oft-employed substitute for face-to-face conversations, cell phone conversations, or email. Accordingly, this court finds that it is objectively reasonable for people to expect the contents of their electronic text messages to remain private.

Read the full opinion here.

Attorney General Kilmartin Comments on SCOTUS Decision Upholding Citizens United

Rhode Island Attorney General Peter Kilmartin commented on the Supreme Court decision reversing, without hearing arguments or accepting briefs, a Montana Supreme Court ruling that affirmed the state’s right to impose its own ban on independent spending by corporations.

“Today’s decision is a clear indication that the Supreme Court will not reconsider its Citizens United ruling.  Citizens United has resulted in a torrent of undisclosed corporate and special interest money into the electoral process due to the flourishing of corporate spending.  This presidential election cycle has seen hundreds of millions of dollars thrown into the race on both sides to sway the American electorate, with very little oversight or accountability.  It is undermining the fairness of elections and distorting the electoral process.

“Therefore, the only way to address the damage caused by that decision is to amend the United States Constitution.  I recognize that amending the Constitution is not an easy task and should not be done lightly.  It should only be amended when it is in the absolute best interest of the nation and its citizens.  Undoing the damage of Citizens United is in the best interest of our country, and is the only way to put the electoral process back in the hands of the people, not special interests.”

In April, Kilmartin called on Congress in a letter to amend the U.S. Constitution to reverse the U.S. Supreme Court decision in Citizens United v. Federal Election Commission.  In May, Kilmartin and 22 attorneys general filed an amicus brief asking the Supreme Court to reconsider the 2010 Citizens United decision, citing that unrestricted independent campaign expenditures may distort political races, promote corruption or require corporate shareholders to fund political communication that they oppose.  The states argued that all state laws governing corporate campaign expenditures seek to ensure that such expenditures did not undermine principles of accountability and integrity in state and local elections, while protecting residents’ rights to participate in the electoral process.

Conservative Federal Judge Deems Portion of Health Care Law Unconstitutional

After two federal judges had deemed the new Health Care law constitutional, a Virginia federal judge appointed by George W. Bush has deemed it’s “individual mandate” provision unconstitutional.  The New York Times has the story:

A federal judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first judge to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

The judge, Henry E. Hudson of Federal District Court in Richmond, said the law’s requirement that most Americans obtain insurance exceeded the regulatory authority granted to Congress under the Commerce Clause.

(…)

In a 42-page opinion, Judge Hudson wrote: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Allowing Congress to exert such authority, he said, “would invite unbridled exercise of federal police powers.”

Compelling vehicle owners to carry accident insurance, as states do, is considered a different matter because the Constitution gives the states broad police powers that have been interpreted to encompass that. Furthermore, there is no statutory requirement that people possess cars, only a requirement that they have insurance as a condition of doing so. By contrast, the plaintiffs in the health care case argue that the new law requires people to obtain health insurance simply because they exist.

The insurance mandate is central to the law’s mission of covering more than 30 million people who are uninsured. Insurers argue that only by requiring healthy people to have policies can they afford to pay for those with expensive conditions. But Judge Hudson ruled that many of the law’s other provisions could be severed legally and would survive even if the mandate is invalidated.

Judge Hudson is the third district court judge to reach a determination on the merits in one of the two dozen lawsuits challenging the health care law. The other judges, in Detroit and Lynchburg, Va., have upheld the law. Lawyers say the appellate process could last another two years before the Supreme Court settles the dispute.

The opinion by Judge Hudson, who has a long history in Republican politics in Northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration, while Democratic appointees have found for it.

Changes to Rule 56 of the Federal Rules of Civil Procedure

Here are amendments to the Federal Rules which became effective on December 1, 2010.

  1. The amendments to Rule 8 delete the reference to “discharge in bankruptcy” from the rule’s list of affirmative defenses that must be asserted in response to a pleading.
  2. The amendments to Rule 26 extend work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, to the discovery of communications between testifying expert witnesses and retaining counsel. The amendments also provide that a lawyer relying on a witness who will provide expert testimony but is not required to provide a Rule 26(a)(2)(B) report – because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony – must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer.
  3. The amendments to Rule 56 are intended to improve the procedures for presenting and deciding summary judgment motions, to make the procedures more consistent across the districts, and to close the gap that has developed between the rule text and actual practice. The amendments are not intended to change the summary judgment standard or burdens. The amendments include (1) requiring that a party asserting a fact that cannot be genuinely disputed provide a “pinpoint citation” to the record supporting its fact position; (2) recognizing that a party may submit an unsworn written declaration, certificate, verification, or statement under penalty of perjury in accordance with 28 U.S.C. § 1746 as a substitute for an affidavit to support or oppose a summary judgment motion; (3) setting out the court’s options when an assertion of fact has not been properly supported by the party or responded to by the other party, including considering the fact undisputed for purposes of the motion, granting summary judgment if supported by the motion and supporting materials, or affording the party an opportunity to amend the motion; (4) setting a time deadline, subject to variation by local rule or court order in a case, for the filing of a summary judgment motion; (5) explicitly recognizing that “partial summary judgment” may be entered; and (6) clarifying the procedure for challenging the admissibility of summary judgment evidence.

Settlement Reached over Defective Defibrillators

According to Bloomberg, a $268 million settlement has been reached in a lawsuit filed against heart device manufacturer Medtronic Inc. over issues with its cardiac defibrillators. The suit claimed that “fractured wires” in the devices led to at least 13 deaths. The settlement covers more than 8,000 cases and each should get an average payout of around $33,000.

$1.5 Million Verdict in Kugel Mesh Lawsuit

RI Lawyers Weekly reports that a U.S. District Court jury has awarded $1.5 million to a married couple for injuries they suffered as a result of a hernia repair patch.

Christopher and Laure Thorpe were awarded $1.3 million for personal injury damages and $200,000 for loss of consortium.

The case, Thorpe v. Davol, Inc. et al., was the second case to go to trial out of thousands of cases filed against Davol Inc., the manufacturer of the Composix Kugel Mesh hernia patch, and its parent company, C.R. Bard.

The verdict came after an earlier case in which the jury found the same defendants negligent in the design of the hernia patch.

The plaintiffs argued before Chief Judge Mary M. Lisi that Christopher Thorpe suffered severe internal injuries caused by a broken plastic ring on the hernia repair mesh. He required multiple surgeries as a result of his injuries.

The jury found that the defendants acted unreasonably in designing the patch and were negligent in failing to provide adequate warning or instruction for the product. The jury also found that the defendants’ negligence proximately caused Laure Thorpe’s physical and emotional suffering due to the loss of consortium of her husband.

The plaintiffs were represented in the case by lead counsel Donald A. Migliori of Motley Rice in Providence and co-counsel Ernie Cory of Birmingham, Ala.-based Cory, Watson, Crowder & DeGaris.

You can learn more about the Kugel Mesh lawsuit by clicking here.