Washington Post: When Businesses Give to Judges, They Get What They Want

The Washington Post recently ran an interesting story on partisan election of judges.  This is obviously not a new story, but a recent academic study seems to confirm the hypothesis that many have surmised. The study, done by Emory law professor and economist Joanna Shepherd study looks at how state judicial systems go about securing judges for their highest courts. There are four ways states select these judges:  merit selection by the state legislature, other appointment systems, state-wide non-partisan elections, and partisan elections.

Of those judicial selection methods, Shepherd then looked to see which justices’ decisions were most influenced by big campaign contributions. It’s no surprise:  justices that were elected to the bench through a partisan election were much more likely to make judicial decisions based on the amount of campaign contributions they had received. The reasoning is simple. “When judges are elected, that means they have to raise campaign money — a lot of money, in fact. And the amounts in question have risen considerably in recent decades.” Judges, whether consciously or not, are more likely to rule in favor of businesses that have donated to their campaign in order to ensure that the campaign donations won’t dry up in the future.

The statistics from Shepherd’s study tell the same story:  “…a justice getting 1 percent of his contributions from business would vote for business 46.5 percent of the time. However, a justice getting 25 percent of contributions from business would vote in its favor 62.1 percent of the time.” As further evidence, Shepherd notes that, “In the last term before mandatory retirement, the favoritism toward business litigants by judges facing partisan and non-partisan elections essentially disappears,” which shows that judges are less likely to vote pro-business when they no longer need to raise money.

I think there are many who think of judges as politicians in robes. In many states, that’s what they are … They seem to think judges should be a reflex of the popular will.

— Retired U.S. Supreme Court Justice Sandra Day O’Connor,making “a plea for preserving the impartiality and independence of the American judicial system,” the Chicago Tribune reports.

One must ask:  Are partisan elections a good idea?

 http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/11/when-businesses-give-judges-money-they-usually-get-the-rulings-they-want/

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Situation Gets Worse For Pilot Flying J

Two of Pilot Flying J’s executives, Arnold Ralenkotter and Ashley Judd, have recently pleaded guilty to the federal charges of conspiracy to commit mail fraud. Many expect a number of other executives to  have criminal charges brought against them in the near future for their participation in a scheme to reduce promised rebates to truckers across the country. The crimes could bring prison sentences of up to 20 years.  It will be interested to see if the CEO, Jimmy Haslem, will be implicated.

Haslem, who also owns the Cleveland Browns, told other NFL owners that he had no knowledge of the illegal scheme to cheat trucking companies.  In a 120 page affidavit, the FBI claims that Haslem did have some knowledge of the program.

The FBI raided Pilot’s headquarters in Knoxville, TN, on April 15, and it was there that the government found overwhelming evidence against Ralenkotter and Judd. Ralenkotter has since admitted to participating in the scheme from 2008 through April 2013. Ralenkotter’s attorney stated, “He knew it was wrong and indefensible, and we felt it was in his best interest to enter a guilty plea early.”

Details of the fraudulent scheme can be found here:

http://www.usatoday.com/story/money/business/2013/05/29/2-plead-guilty-in-feds-probe-of-truck-stop-chain/2370797/

Many Who Qualify Have Not Filed BP Claims Yet

More than 32,367 individuals and businesses in Alabama have filed claims in a settlement stemming from a class action lawsuit against BP over its 2010 Gulf of Mexico oil spill, but many who might qualify for settlement funds have not yet filed claims.   Thousands of Alabama individuals and businesses have filed and their claims are currently in process.

Of the claims filed thus far in Alabama, about 9,600 have been declared eligible and $573 million has been paid. Millions more have been paid to residents of neighboring states as well. In total, 172,000 claims have been filed in five states, and claims administrators have paid out more than $3.5 billion.

Businesses do not have to be located on the Gulf Coast to qualify for payment.  In fact, any business in Alabama qualifies.  An accounting formula is used to determine if a business lost revenue during the oil spill period. Businesses must demonstrate that their revenue during three consecutive months between May and December of 2010 was 15 percent lower than during a benchmark period from before the oil spill, and that revenue over the same three month period in 2011 was at least 10 percent higher than during the oil spill months. Claims must be accompanied by documents including federal tax returns.

Even if your business was healthy during these time periods, you may still qualify for the settlement.

Claimants must file by April 2014. This seems like a long way into the future, but the close out date is fast approaching. 

The BP Deepwater Horizon spill in April of 2010 dumped 5.9 million barrels of oil into the Gulf, more than 17 times the amount of crude that was spilled by the wreck of the Exxon Valdez tanker in 1989.

The attorneys at Pittman, Dutton & Hellums, P.C. are currently investigating BP claims. If you or someone you know, or represent, owns a business in Alabama, Louisiana, Mississippi and certain areas of Florida and Texas, you may qualify for a BP claim payment. Please contact Chris Hellums toll free at 1-866-515-8880 or via email at chrish@pittmandutton.com.

Trial Judge Affirms $8.3 Million Dollar Jury Verdict in First Trial Against Depuy for Recalled ASR Hips

A California Superior Court judge has denied DePuy Orthopaedics’ motions for new trial or judgment notwithstanding the verdict, upholding the $8.3 million judgment that resulted from the state’s first trial of a DePuy ASR hip implant case. The case is Kransky v. DePuy, BC456086, California Superior Court, Los Angeles County.

In March, the jury hearing the DePuy ASR recall lawsuit in California found the ASR hip was defectively designed, and awarded more than $8.3 million to the Plaintiff, Loren Kransky. Mr. Kransky sued the company under the theory that the ASR was defectively designed as well as DePuy's failure to warn his doctors that its product was dangerous. He claimed that the ASR hip caused him to suffer severe side effects, including metal poisoning. The jury found in favor of Mr. Kransky on the design defect claim and in favor of DePuy on the failure-to-warn claim.

During that trial, evidence was introduced which indicated Johnson & Johnson and its subsidiary, DePuy Orthopaedics, had knowledge that the ASR hip product was defective years before the recall was announced. The recall occurred in August 2010. However, that information was not shared with the public at large or the medical community. According to a New York Times report published on April 16th, much of the same evidence was introduced in a second trial that concluded last month in Illinois state court. However, the jury hearing that case found for Johnson & Johnson.

Los Angeles Superior Court Judge J. Stephen Czuleger issued his decision from the bench following a hearing May 24 and has scheduled a hearing in June on the plaintiff’s attorneys’ request for approximately $1.2 million in costs. DePuy submitted its motion for JNOV April 17^th in the corporation’s bid to persuade Judge Czuleger to throw out the verdict. In their motion, Depuy argued that the jury had erred and its verdict was inconsistent.Thus far, there has been no written order.

Judge Czuleger ruled that although there was a "legitimate conflict" in the evidence at trial as to when DePuy knew that its ASR hip implants were dangerous, this did not bar Mr. Kransky's ability to hold DePuy liable for a defectively designed product. The judge also rejected DePuy's claim that the overall body of evidence was insufficient to support Mr. Kransky's verdict, noting that there was "strong evidence" in support of his claim.

Court records indicate that there are more than 11,000 DePuy ASR hip lawsuits currently pending throughout the United States, most of which have been filed in a multidistrict litigation underway in U.S. District Court, Northern District of Ohio. The first trials in the MDL are expected to begin in September 2013. That date is subject to change as the first bellwether case has been continued already this year. The ASR MDL is titled In re: DePuy Orthopaedics, Inc. ASR Hip Implant Products Liability Litigation – MDL 2197.


Our firm is currently investigating claims for those people who have been implanted with the DePuy hip replacement devices, both ASR and Pinnacles. If you would like a free case evaluation, please contact Chris Hellums at toll free 1-866-515-8880 or at chrish@pittmandutton.com.
 

Manufacturer and Implanting Physician of Vaginal Mesh Found Liable

http://www.businessweek.com/news/2012-07-25/bard-doctor-lose-verdict-over-vaginal-mesh

                Bloomberg Businessweek

Currently, there are hundreds of lawsuits pending alleging that vaginal-mesh implants made by Murray Hill, New Jersey-based Bard, Boston Scientific Corporation and other companies have caused organ damage in women.

A jury in California has recently held C.R. Bard, Inc., manufacturer of the Bard Avulta Plus transvaginal-mesh implant, liable for injuries caused to plaintiff Christine Scott. The devises are used to treat pelvic organs that bulge, or prolapse, or to deal with incontinence. Scott was implanted with the device in 2008 and afterwards had to undergo as many as nine surgical procedures to deal with problems caused by the device.

In her complaint, Scott alleged that the Bard Avaulta Plus vaginal-mesh implant was defectively designed and that the manufacturer had failed to warn about its safety risks. Her attorney produced evidence in hopes of showing the jury that Bard did not properly test the device before putting it on the market. In its ruling, the California jury found that Bard officials knew or should have known that surgeons “performing pelvic-floor repair would not realize the potential risks” posed by the implant. As a result, the jury ruled that Bard was 60% at fault and Christine Scott’s implanting surgeon, Dr. Tillakarasi Kannannan, 40% liable for the injuries Scott sustained as a result of the vaginal-mesh device.

In their verdict, the jury ruled that together, C.R. Bard, Inc. and Dr. Tillakarasi Kannannan are to pay $5.5 million to Scott and her husband. The damages awarded are in order to compensate both plaintiff and her husband for their financial and emotional suffering caused by the vaginal-mesh device Christine had implanted back in 2008.

In an e-mail statement, Scott Lowry, a Bard spokesman, stated that “while we empathize with the complications suffered by the plaintiff, those complications are not the fault of any conduct by the company.” Lowry went on to say that “[the company] believe[s] the evidence establishes that our Avaulta mesh products, cleared by the FDA, are safe and effective and provide significant benefits to patients.”

A 2011 report by the U.S. Food and Drug Administration found that vaginal mesh products should be classified as posing high risk to patients based on a review of side-effect reports from January 2008 to December 2010. In January of this year, in attempt to investigate the safety of vaginal mesh implants, the FDA ordered 31 manufacturers to study the rates of organ damage and other complications occurring as a result of the implants. Both Bard and Johnson & Johnson were included in the manufacturers required to conduct these studies. These studies must be conducted over the period of three years.

Hmmmm: Alabama Athletic Director Not Necessarily Against NCAA Players Begin Compensated

Newly hired Alabama Athletic Director, Bill Battle, recently waded in on the discussion of 
compensating players.  His comments are certain to gain the attention of many.  The reason is that Bill Battle is the founder of Collegiate Sports Licensing (CLC), which he sold to IMG.  CLC is a defendant in the lawsuit brought by former players, including Ed O'Bannon and Tyrone Prothro (represented by me and my firm) regarding the use of their names and likeness.

So, what did Battle say and why is it important?

"I know the conference (SEC) is on record as saying they want a (cost-of-attendance scholarship) stipend for all athletes," Battle said. "I don't see how you can pay one set of some players on a team more than others. The Olympic model might be something where you put money in a trust and it goes to that individual and they don't use it until after they graduate."

"That may be something. I'm for exploring anything. I want people to get their fair market value. But again, (in) our system ... there are a lot of people that are beneficiaries as well as coaches and players and staff members."

In other words, Battle realizes that the dam has broken.  He is uniquely qualified to try and craft a solution and the powers that be in the NCAA would do well to listen to his sage advice.  However, crafting a solution is more difficult that it appears and the NCAA has always taken a scorched earth approach and been slow to change.  

At the heart of the problem is the fiction created by the NCAA of the "student athlete".  That fiction allowed the NCAA to escape workers compensation liability and also allows them to claim tax exempt status---because they are not a commercial enterprise---how crazy is that notion.  Take away the tax exempt status and discontinue their ability to steal and monetize the names and likeness of the players and you just took away the fancy wine, tenderloin steak, and truffles that the NCAA has been living off for a very long while.

Whether the atomic bomb goes off in the O'Bannon case or not, the die has been cast.  There is just too much money being made off the players.  No one knows for sure when the dam will break, but it is leaking like a Katrina levy, and the NCAA would do well to come up with exit strategy, and come up with it fast.  By all accounts, Bill Battle is a man of character and supremely qualified to craft a solution.  Mr. Emmert would do well to seek his advise as to how craft a solution before one gets crafted for him.

Big Victory for NCAA players in claims against EA Sports

Ryan Hart, the quarterback for Rutgers from 2002 to 2005, filed suit in 2009 accusing EA Sports of using his image and likeness in their video games without his permission and without compensation. The lower court threw out his case.  The Third Circuit Court of Appeals in Washington D.C. has reversed that dismissal

Hart’s right of publicity claim against EA Sports was revived last week in a 2-1 decision by the 3^rd Circuit Court of Appeals. The District Court of New Jersey had granted summary judgment in favor of EA Sports in September 2011, saying that EA's use of Hart's likeness was protected as expressive speech by the First Amendment. However, Judge Greenaway, writing for the majority of the 3^rd Circuit disagreed in his recent opinion stating, “We therefore hold that the NCAA Football 2004, 2005 and 2006 games at issue in this case do not sufficiently transform Appellant's identity to escape the right of publicity claim and hold that the District Court erred in granted summary judgment in favor of Appellee.”

In other words, the court said what everyone already knew and as EA advertises "if it is in the game, it is in the game."

The case has been sent back to the District Court for further proceedings. The ruling could affect a number of similar lawsuits that are currently pending, including the O'Bannon lawsuit currently set for class certification this month in California.

More information can be found at these websites:

http://www.usatoday.com/story/sports/ncaaf/2013/05/22/college-athletes-name-likeness-video-games-federal-appeals-court/2349923/

http://www.businessinsider.com/ryan-hart-sues-electronic-arts-2013-5

http://www.nj.com/rutgersfootball/index.ssf/2013/05/former_quarterback_ryan_hart_g.html

The 3^rd Circuit’s full judicial opinion can be found here:

http://scholar.google.com/scholar_case?case=8853182257956538242&q=%22ryan+hart%22&hl=en&as_sdt=2,1&as_ylo=2013