Archive for November, 2013

Propecia Concerns Continue as More Cases are Filed

Friday, November 29th, 2013

Merck & Co. is the defendant in yet another lawsuit related to the use of Propecia in which it is alleged that the medication is responsible for causing numerous serious side effects that include depression, sexual dysfunction, cognitive impairment and cancer. The suit filed by plaintiff Warren Shepherd in the New York Eastern District in Brooklyn, represents the latest of the cases involving this drug, a tally that has topped 700 actions.

Finasteride, sold on the market as Proscar and Propecia, is used in the treatment of hair loss as well as prostate hyperplasia, was prescribed to the plaintiff in this case when he was 61 years of age. Pursuing theories of strict products liability and fraud, Mr. Shepherd alleges that Merck was fully aware of the drug’s potential harmful and lasting side effects. Specifically, the plaintiff argues that Merck should have warned patients and doctors about the risk of permanent sexual dysfunction posed by the use of Propecia.

As of September of 2013, 739 actions had been filed in the Propecia Multidistrict Litigation, all of which included allegations similar in nature to those made by Shepherd. Several such suits have also been filed in Canada in which plaintiffs argue that their sexual interest and function have been permanently harmed due to their use of this drug.

May, 2013 saw FDA approval of changes to the labeling of Propecia to add a list of potential side effects of the medication, including libido disorders, erectile dysfunction, orgasm disorders, ejaculation disorders and male infertility. Patients would now also be alerted to the fact that those potential side effects could persist after use of the drug had been stopped. This stands in contrast to prior Merck assurances that Propecia’s potential sexual side effects would cease soon after patients discontinued their use of the medication.

Many impacted patients have alleged that not only did their sexual side effects not disappear once treatment with Propecia was stopped, their doctors did not acknolwedge or were unware of the potential for those side effects to be permanent. It appears to these plaintiffs that many physicians were relying on representations made by Merck sales representatives that any such side effects were only temporary in nature and entirely reversible.

In many instances, consumers have only recently gained an awareness of the link between their sexual dysfunction and their past use of Propecia. Many are under the impression that because their Propecia use occurred several years prior to this discovery, they no longer have the ability to file a lawsuit. However, there are numerous jurisdictions in which the statute of limitations on such claims does not begin until an injured party knows or should have known exactly what caused the harm they sustained. For that reason, individuals who suspect they have been adversely affected by Propecia should consider contacting an attorney.

$13 Billion Settlement With JPMorgan

Wednesday, November 27th, 2013

On November 19, an announcement was made by the United States Department of Justice (DOJ) that it had reached a final civil settlement worth $13 billion with JPMorgan & Co. The deal marks full resolution of all state and federal claims stemming from the banking giant’s questionable mortgage sector practices which many believe played a substantial role in the financial crisis of 2008.

The settlement represents the largest such agreement ever made by an individual company in this country. As part of the agreement, a statement of facts was placed into the record, in which JPMorgan acknowledges that its employees, as well as those of Washington Mutual and Bear Stearns, knew that mortgage loans at the time were not compliant with applicable rules and regulations, but were securitized and sold anyway without informing investors of the risk. Attorney General Eric Holder stated that this particular conduct laid the foundation for the meltdown of the mortgage market, the effects of which are still being felt.

While JPMorgan was certainly not alone in engaging in this type of market behavior and had lots of company in the bundling of risky loans for the purpose of selling them to unwitting investors, the DOJ asserts that this should not mitigate the extent of the penalty to be faced. According to the Justice Deparment, the massive scale of the settlement reached with JPMorgan ought to serve as a warning that the investigative process has not concluded and that accountability will be sought from the parties involved.

Despite the existence of the settlement agreement, JPMorgan and its employees individually could still be criminally liable for the actions forming the basis of the agreement. In addition, JPMorgan will be required to pay $4 billion in relief to consumers who were negatively impacted by the conduct at issue. This relief could come in the form of loan modifications, principal forgiveness and blight reduction efforts. Full compliance must be demonstrated by December 31 of 2017.

Governmental scrunity of JPMorgan does not end with this settlement, a fact made evident by the company’s August SEC filing in which it acknowledged being the subject of investigations by the criminal and civil divisions of the U.S. Attorney’s Office of the Eastern District of California. Though the mortgage meltdown is now several years in the rear view mirror, it is clear that the ramifications of the conduct that led to it will continue to accumulate.

Wisconsin Tackles Voter-ID Law

Tuesday, November 26th, 2013

Both the Milwaukee Branch of the National Association for the Advancement of Colored People and the League of Women Voters of Wisconsin Education Network, Inc. in separate lawsuits challenged 2011 Act 23, Wisconsin’s voter photo ID law, in Dane County Superior Court, and both succeeded. The NAACP won after a trial a permanent injunction, an order enjoining implementation or enforcement of the law, and the League won a summary judgment that the law violates Article III Section 1 of the Wisconsin State Constitution. The state appealed both rulings.

Article III Section 1 provides that, “Every United States citizen 18 years of age or older who resides in an election district in Wisconsin is a qualified elector in that district, unless excluded by duly enacted laws barring certain convicted felons or adjudicated incompetents/partially incompetents.” Both Superior Court decisions interpreted this provision to mean that, “The government may not disqualify an elector who possesses those [age and residence] qualifications on the grounds that the voter does not satisfy additional statutorily created qualifications not contained in Article III, such as a photo ID.” * Both decisions concluded that only a constitutional amendment can add a photo ID qualification or requirement.

On appeal, the state filed in the NAACP case a petition for leave to appeal and a petition to bypass to proceed directly to the Supreme Court in Madison. That court denied both petitions. The parties completed briefing in January 2013, and the court of appeals set the case for oral argument in December 2013. In the League case, the court of appeals reversed the Superior Court decision in May 2013.

The Court of Appeals addressed and rejected three primary arguments in support of the Superior Court decision in the League’s case: (1) the photo ID requirement is an impermissible “additional qualification” to vote not in Article III, (2) the requirement is unconstitutionally imposes a restriction so burdensome that it effectively denies the right to vote and is therefore “unreasonable,” and (3) the legislature “exceeded the express authority granted to it” under Article III.

The court of appeals concluded that (1) the League had not shown that the photo identification requirement is an “additional qualification” for voting as opposed to a voter registration regulation, (2) no evidence supports the League’s argument that the requirement is so burdensome that it denies the right to vote, and (3) the argument that the legislature exceeded its authority collapses with the League’s concession that the legislature has broad constitutional authority to establish a voting registration system under which election officials may verify the identity of a registered voter.

Then in November 2013, the Supreme Court granted review of the court of appeals opinion in the League case and agreed “in the interest of judicial economy” to hear it together with the NAACP case before any final decision there in the court of appeals.

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* Under Article III Section 2, “Implementation,” the legislature may enact statutes “providing for registration of electors.”

Texas Abortion Law Remains in Place

Monday, November 25th, 2013

On Tuesday, the state of Texas was allowed by the Supreme Court to maintain abortion restrictions that have forced over one-third of Texas’ medical facilities to discontinue their abortion services. In a five to four vote, the judges chose to uphold a law that requires abortion providers to possess admitting permissions at an area hospital.

The conservative judges of the court, which constitute a majority, denied Planned Parenthood’s and other abortion clinics’ request to reverse the ruling of a federal appeals court that enabled the law to be enacted. The four liberal judges disagreed with the refusal.

So far, the issue is set to be taken to New Orleans’ 5th US Circuit Court of Appeals. It is expected that the court will hear debates on the law come January. For now, the law will stay in effect.

Judge Stephen Breyer, who wrote for the liberal judges, stated he believes the argument will be taken back to the Supreme Court after the court of appeals gives its final judgement. Texas’ state legislature first gave its approval for the law regarding admitting permissions in July.

Immediately before the law was to take effect in late October, it was blocked by a trial judge. The reason given was that the law was likely unconstitutional since it posed a considerable hurdle to women seeking abortions.

However, an appellate panel of three judges were quick to overrule the trial judge. According to the appeals court, the law was consistent with Supreme Court rulings which have enabled restrictions on abortion services insofar as they don’t present an undue hardship on a woman’s ability to have the procedure. Judge Priscilla Owen, who wrote for the appeals court, stated that the law wouldn’t ban abortion, merely make women travel further for it.

Judge Antonin Scalia, supporting the order, claimed the clinics wouldn’t be able to circumvent the monumental legal hardship against reversing the appeals court’s decision. Judges are not allowed to do so unless the court was obviously in the wrong.

Judge Anthony Kennedy and Chief Justice John Roberts neither wrote not sided with any opinion on Tuesday. However, because five votes are needed to overturn an appellate ruling, it’s obvious that they sided with the other conservative judges.

Class-Action Lawsuit Against Google Dismissed

Friday, November 22nd, 2013

On November 14, 2013, a class-action lawsuit against Google concerning the company’s unapproved scanning and uploading of copyright materials was dismissed in the U.S. District Court for the Southern District of New York (SDNY). The judge ruled that Google’s use of copyrighted material was a “beneficial service” in that it gave users only “snippets” of information, which led to awareness of and access to many works.

The case primarily concerned Google Books Library Project, which scans collections of major research libraries and makes them searchable. With its advanced scanning techniques, it provides participating libraries with digital copies of books as long as a physical copy is actually in the library. Google admitted that copyright owners of the books did not give consent and they did not receive any compensation. However, Google claimed the entire operation was legal under the “fair use” clause, contained in Section 107 of the U.S. Copyright Act. It states that there is no such infringement if the digital copies are to be used to benefit research or education.

In dismissing the lawsuit, the court found Google’s service to be “transformative.” It took several factors into account in its judgment, including a lack of “for profit” motive and the proportional amount of material taken from each book.

Google’s “fair use” defense has also served it well on other occasions. Copyright infringement has been charged against Google on several occasions. For instance, this lawsuit was filed in July 2005, along with two others that year. Agence-France-Presse (AFP opened a lawsuit, claiming that Google had taken material illegally from its website. The Association of American Publishers also filed against Google for scanning documents to be used with its Library Project. Google was successful in both defenses. In 2012, Google was also successful in another case, using the “fair use” exception.

Lexapro Birth Defect Cases Continue on the Rise

Thursday, November 21st, 2013

Though seemingly absent from the litigation landscape in recent months, cases involving birth defects and the use of the drug Lexapro are likely to return to center stage when the consolidated Lexapro/Celexa products liability trial begins in May 2014.

Prescribed to patients suffering from depression, Lexapro is an SSRI (selective serotonin reuptake inhibitor) antidepressant. The use of this class of drugs is widespread, with some studies suggesting that one out of every five people in the United States currently has a prescription for such medications. While almost all prescription drugs bring the risk of certain side effects, some are more serious than others. The Lexapro litigation involves allegations that the drug is characterized by dangerous side effects that can harm unborn children.

Some of the birth defects the plaintiffs in these cases have attributed to Lexapro use by pregnant mothers are things such as spina bifida, club foot, hypoplastic left heart syndrome, anencephaly, omphalocele and craniosynostosis. Pulmonary hypertention in affected newborns has also been alleged to be due to the mothers’ use of Lexapro.

Debate has been hearty on the topic of whether SSRIs such as Lexapro ought to be given to expectant mothers in the first place. While the risk of harm to their unborn children from the drugs has always been thought to be small, it has never been declared to be nonexistent. On the other hand, the risks of untreated depression in the mother can be significant, and the postpartum depression that may ultimately develop can have extremely adverse impacts on young babies as well.

Plaintiffs in this litigation argue that if they had been made fully aware of the risks involved in taking these drugs while pregnant, they would have abstained and their babies would have been spared the injuries they eventually suffered.

Slated to begin in May of next year in the Missouri Judicial Circuit 19 of Cole County, the first of the consolidated Lexapro cases may serve as a barometer of similar litigation yet to come. Plaintiffs interested in pursuing claims against the makers of Lexapro for failing to warm about the dangers of serious birth defects are continuing to build cases in numerous other jurisdictions. The direction of those cases may be significantly shaped by what happens in Missouri beginning next year.

Challenge to Verizon Order Denied

Wednesday, November 20th, 2013

On November 18, the Supreme Court denied a petition for the review of a case in which the Foreign Intelligence Surveillance Court ordered Verizon to give the Federal Bureau of Investigation and the National Security Agency its data records for telephone calls and Internet exchanges. The filing questioned if the FISC exceeded its authority under the Patriot Act to grant foreign intelligence surveillance when the order was handed to Verizon.

The Electronic Privacy Information Center, an advocacy group, filed the petition with the Supreme Court directly. The intention of the petition was to remove the FISC’s order and to block similar orders from being made in the future or at least make the Supreme Court review the order.

Global controversy and debates have been sparked after the NSA’s surveillance programs were exposed earlier this year. The FISC released an opinion in September about why a program that keeps Americans’ phone records is constitutional. During the same month, the American Civil Liberties Union pressed the Obama administration to place restrictions on the surveillance powers that the FBI holds. A criminal investigation has also been called for by lawmakers into the activities of the whistleblower, ex-NSA contractor Edward Snowden.

The decision to deny the challenge to the FISC’s order means that it will take months or even years before the Supreme Court will review the controversial NSA surveillance program. Giving the decision, Justice Samuel Alito said that the theory of imminent injury is too hypothetical.

Meanwhile, NSA supporters in Congress are butting heads with agency critics about what should be done with the phone call records collection program. Dianne Feinstein, the Senate intelligence chair, led a bill through her committee with the aim to reorganize the powers that the agency has. However, Patrick Leahy, the Senate judiciary chair, wants the program to end altogether.

Death Penalty a Possibility in Police Officer Death

Tuesday, November 19th, 2013

On October 14, 2013, the Supreme Court of Washington ruled that prosecutors in the Christopher Monfort case may seek the death penalty. Ruling unanimously, the Supreme Court effectively overturned a February ruling, issued by the Kings County Superior Court, denying prosecutors the option of seeking the death penalty.

Christopher Monfort has been accused of murdering Officer Tim Brenton and maiming his colleague. On October 31, 2009, the two officers were sitting in their patrol car when Monfort shot at them. Monfort is also accused of several incidents of arson, which occurred in the same month. These incidents include firebombing four police vehicles and detonating additional small bombs when rescue teams arrived to help potentially wounded individuals. The prosecution claims that Monfort’s apartment contained a screed against police brutality as well as a significant trove of weapons and additional explosives. He faces charges of aggravated murder and attempted first-degree murder.

The prosecution announced shortly after Monfort’s trial began that they would seek the death penalty. Prosecutor Dan Sattenberg reported that he had conducted interviews with individuals close to Monfort to seek mitigating evidence, but had not obtained any. The defense countered that Mr. Sattenberg should receive mitigating evidence from the defense and moved to counter the motion to pursue the death penalty.

The Kings County Superior Court characterized Prosecutor Sattenberg’s mitigation investigation as a “flawed, practically useless.” Prosecutor Sattenberg countered that the defense had been given 10 months to investigate, conduct interviews, and provide necessary mitigating evidence, but did not do so.

Ultimately, though the Kings County Superior Court supported the defense’s argument, the Supreme Court of Washington overruled the court’s judgment. The case is scheduled to continue its trial.

According to Washington State law, mental health issues, disease, or mental defects may be submitted to mitigate a death penalty sentence. After his arrest, Christopher Monfort was left paralyzed from the waist down when a bullet hit his lower back. His defense team plans to mount an insanity defense on his behalf.

Chronic Fatigue Denied by Insurance Company

Monday, November 18th, 2013

If you suffer from chronic fatigue syndrome, then you know how debilitating it can be. For many people, it can be so severe that they are no longer able to work. If you are in this position and thinking about making a disability claim with your insurance company, then you should think again. People are routinely denied their claims for chronic fatigue syndrome. Although it is recognized as an illness by the medical community, many insurance companies and their representatives do not.

Chronic fatigue syndrome is seen by many people in the insurance industry as a made-up illness. People who claim to suffer from this condition are simply lazy and do not want to work. Claims filed for disability are routinely denied. It should be noted that this is not true with Social Security. The federal government recognizes this syndrome and will grant disability to a person as long as they are legitimately diagnosed. Private sector insurance is a different matter.

A woman in Detroit, Michigan recently was in the news as having this exact problem. In her middle 50s, she is no longer able to work because her chronic fatigue condition is so severe. She lost a good paying job in the health care industry, and although it took a while, her problem was finally diagnosed as chronic fatigue syndrome. She filed a claim with Cigna her insurance company, but she was denied benefits. Although she was able to get her Social Security benefits, she had to fight hard to even get the attention of Cigna. It has been seven years since her final appeal to Cigna, but she is hopeful because she now has an attorney.

If you have had a problem with a claim with your private insurance company over disability, it is imperative that you get in touch with a disability insurance attorney. The longer you wait to do this, the more difficult you will make the case for an attorney. Besides giving an attorney a fresh issue to work with, you are simply wasting your time fighting with any insurance company. They have overwhelming resources, both legal and financial, putting you at a disadvantage.

Department of Justice Announces Airline Settlement

Friday, November 15th, 2013

A major obstacle that threatened the merger of two airlines has been removed by the U.S. government, which could lead the way to the creation of the world’s largest air carrier. The U.S. Department of Justice (DOJ) announced on November 12 that it had settled an antitrust lawsuit it had previously filed due to concern that the merger between American Airlines and US Airways would stifle competition. The final judgment filed by the DOJ will thus allow the two companies to finalize the merger agreement.
The DOJ concluded that the entry into the final judgment is in the interest of the public, and further noted that the parties involved are now in compliance with the stipulations of the Antitrust Procedures and Penalties Act. In accordance with these requirements, copies of the final judgment have been made available to the public, as have comments on this judgment and any responses to them made by the federal government.
Under the name New American, the carrier will operate 57 percent of the nation’s airline flights. It was this domination of the airline business that prompted U.S. officials to challenge the merger in August. This was two months after the U.S. Government Accountability Office released a report stating that the merger would reduce competition on more than 1,500 domestic routes, while increasing competition on only about 200 routes.
The increase in the size of the airline will be offset by the fact that New American will be required to divest many of its terminal gates and reduce its service to some major airports. Those affected will include Ronald Reagan-Washington National Airport, serving the nation’s capital, and La Guardia Airport, serving New York City.
The discussion about a possible a merger began last year when US Airways expressed interest in American Airlines, which had previously filed for bankruptcy. If completed, this consolidation will be only the latest in a series of mergers that can be traced to the deregulation of the U.S. airline industry in 1978. Although deregulation was credited with the creation of lower fares, it also produced a long period of unsustainable financial losses, necessitating the consolidation of many companies.