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R.I. judge seeks teen drinking, drug cases
Lawyer Blog News | 2007/08/01 11:29
The state's chief Family Court judge is urging police chiefs to refer teenage drinking and drug cases to his court instead of to local juvenile hearing boards. Judge Jeremiah S. Jeremiah Jr. said Family Court provided better services to deal with substance abuse cases. He said moving teenagers out of the hearing boards and into the Family Court system would recognize drug and alcohol use as a "serious and dangerous offense."

"The Family Court has both staff and specialized programs in place to effectively and efficiently handle this serious problem facing our youth throughout the state," Jeremiah wrote in a letter to police chiefs.

The letter follows the death two weeks ago of a 17-year-old Barrington teenager who disappeared in a river while riding a kneeboard pulled by a motorboat. The boat operator, a classmate, faces charges including underage possession of alcohol and refusing to take a breath test.

The hearing boards handle juvenile cases in all but six of Rhode Island's 39 cities and towns, and police departments can decide whether to refer a teenager there or to Family Court.

Typically, Family Court handles more serious charges, and teenagers facing a second offense are also more likely to be sent there.

But Jeremiah is seeking to expand the reach of Family Court by asking police chiefs to refer all cases to Family Court that involve the juvenile equivalent of an adult misdemeanor offense, such as using fake identification to buy alcohol or underage possession of alcohol.

Among the Family Court services Jeremiah cited are organized trips to an emergency room to see the consequences of drunken driving and alcohol-related incidents.



Ciprianis Plead Guilty in $10 Million N.Y. Tax Case
Legal Career News | 2007/08/01 11:24

The father and son operators of the Cipriani restaurants, which include the Rainbow Room in New York and Harry's Bar in Venice, Italy, pleaded guilty to evading $10 million in state and city business taxes. Arrigo Cipriani, 75, owner of Cipriani SA, pleaded guilty today in New York state court to filing false state corporate tax returns, a felony. Giuseppe Cipriani, 42, chief executive officer of Cipriani USA, the U.S. unit, admitted a misdemeanor false- return charge. They claimed deductions for fake royalty payments, prosecutors said.

"These deductions were a sham,'' Manhattan District Attorney Robert Morgenthau said at a press conference. "Although the books and records of Cipriani USA reflected that the payments had been made, in fact no money was ever transferred or otherwise paid to Cipriani SA.''

The men will be placed on probation at their sentencing Oct. 10, said their lawyer, Stanley S. Arkin. They and their companies must pay $10 million in back taxes in the next 3 1/2 years, and a monitor will ensure the businesses pay the taxes they owe until 2011, prosecutors said.

"We're happy to have resolved our disputes with the state and the city and the district attorney,'' Arkin said in an interview. "It's time for this very unique and extraordinary brand to get back to doing what we're doing.''

At least one Cipriani business is being audited by federal tax-collectors, Arkin said.

Cipriani Restaurants

The Luxembourg-based restaurant empire owned by Arrigo Cipriani, whose age was reported as 73 by his lawyer and 75 by the government, traces its origins to 1931 when Giuseppe Cipriani Sr., Arrigo's father, opened Harry's Bar.

Beef Carpaccio and the Bellini, a drink made of peach puree and sparkling wine, are among "notable influences of Harry's Bar on the art of gastronomy,'' the company Web site says.

Cipriani New York restaurants and banquet spaces include Harry Cipriani in the Sherry-Netherland hotel, where a Bellini is $19.95; Cipriani Dolci in Grand Central Terminal, where it's $12.95; Cipriani 42nd Street; Downtown Cipriani; and Cipriani Wall Street, in a building at 55 Wall Street that once housed the Merchants' Exchange and the New York Stock Exchange.

Three Cipriani corporations pleaded guilty today through Arkin: Cipriani Fifth Avenue, doing business as the Rainbow Room; Downtown Cipriani New York; and GC Alpha LLC, doing business as Cipriani Dolci.

Tax Deductions

The tax deductions were for royalty payments supposedly made by the U.S. unit to the parent company, Morgenthau said.

Cipriani USA claimed to have paid $30.7 million from 1998 to 2004, 11.5 percent of sales, to the parent company in exchange for the right to use the family name and other trademarks, Morgenthau said.

"For tax years 2003 and 2004, New York State and New York City taxes were evaded in the amount of approximately $10,000,000,'' the elder Cipriani said in a statement read to the court. No royalties were actually paid for those years, he said.

In a press release, the Ciprianis said the case resulted from their failure to abide by a 2003 change in New York tax law that required a company paying royalty to a foreign entity to account for the difference in taxes between the two jurisdictions.

Arrigo Cipriani could have faced as much as four years in prison for the crime he admitted. Giuseppe Cipriani's offense has a maximum punishment of a year in jail.

Plea Bargain

Morgenthau said his office will recommend probation for both men. The plea bargain was struck because investigations involving other countries are difficult and time-consuming, the district attorney said.

The restaurant chain has been the subject of an investigation by the district attorney's office since November 2005.

On July 2, Dennis Pappas, a former vice president of Cipriani USA, was sentenced to 1 1/2 to 4 1/2 years in prison for defrauding insurers of more than $1 million in disability payments.

William J. Comisky, deputy commissioner of enforcement for the New York Department of Taxation and Finance, said the state is increasing its efforts against tax cheats, quadrupling the number of investigators.

Morgenthau said the case should send a message to other companies. "You're not going to get away without paying taxes by hiding behind offshore jurisdictions,'' he said.



U.S. court bars Vioxx lawsuits from Britain
Legal World News | 2007/07/31 18:32
An appellate court on Tuesday ruled that 98 people from the England and Wales cannot sue Merck & Co. in New Jersey for health claims arising from their use of the once-popular painkiller Vioxx. The New Jersey three-judge panel affirmed the decision of the state judge who is handling all of the more than 15,000 such lawsuits filed against the drug maker, which is based in New Jersey. The ruling is a victory for Merck, which maintains that the New Jersey court was an improper forum for foreign plaintiffs.

A lawyer for the British plaintiffs, Michael A. Galpern, said they will be considering whether to appeal to the New Jersey Supreme Court.

"We believe today's decision took an unrealistic view of English Law, and entirely disregarded the plain fact that the United Kingdom's loser pays system means that pensioners must now run the risk that Merck may take their house if they lose this case," Galpern said.

He said it was ironic that Merck said New Jersey was an inconvenient location to defend itself.

"The effect of today's ruling will be to make it much cheaper and easier for American companies to injure and kill non-U.S. residents," Galpern said.

Merck lawyer Charles W. Cohen applauded the ruling, asserting that the lawsuits should be filed in Britain, where the plaintiff's medical records and witnesses are located.

He noted that a similar finding was reached last year by the judge handling all the federal lawsuits, who dismissed lawsuits from residents of France and Italy.

Merck pulled Vioxx from the market in 2004 after research showed it doubled cardiovascular risks. The number of pending personal injury lawsuits against Merck have declined recently, to about 26,950, as some claims were dismissed. The company maintains it will not change its strategy of fighting each lawsuit.

Cases filed in New Jersey are all being handled by one judge, state Superior Court Judge Carol Higbee in Atlantic City.

Cases filed in various federal courts have been sent to New Orleans, where they are before U.S. District Judge Eldon E. Fallon.

Merck has won nine cases and lost five that have reached verdicts; it is appealing all its losses and faces retrials involving three other plaintiffs.



Lobby reform aims at disclosure
Legal Career News | 2007/07/31 18:27
In a bid to score a quick victory before the August recess, Democratic leaders in Congress are moving ahead on lobby and ethics reform legislation that they say will make sweeping changes in the way business is done in Washington. At the heart of the measure are new reporting requirements for lobbyists' expenditures on Capitol Hill and protections against conflict of interest for members. The bill also would give the public more information than ever before about contacts between lobbyists and members of Congress, including the names of super-fundraisers whose "bundled" contributions to members' reelection campaigns vastly exceed the $2,300 limit on individual campaign donations.

On Tuesday, the House voted 411-to-8 to approve the bill with only 2 Republicans voting against the bill, despite criticism from GOP leaders. In the Senate, Democrats predict they, too, will have the votes to pass the measure because few lawmakers want to go home to explain a vote against a measure whose title is the Honest Leadership and Open Government Act.

Still, House Republican leaders called the bill a "hollow shell of reform" and complained that they had been blocked from any role in drafting final language, which was released Monday.

"The legislation is far from perfect, but the fact that they were able, finally, after all these efforts, to get it together to do this is highly significant," says Norman Ornstein, a senior fellow at the American Enterprise Institute in Washington and a longtime critic of congressional ethics.

The House and Senate have each already voted some version of ethics and lobby reform. In the House, some reforms were adopted as rules, during the first 100 hours of the new Congress. But reformers say it's essential that the new standards be passed as law in both the chambers.

"There was a strong temptation on the part of many to say, 'We've done this, let's move past it,'" says Mr. Ornstein. It's significant that much of the drive to pass a new law came from the former and current chairs of the Democratic Congressional Campaign Committee, Reps. Rahm Emanuel (D) of Illinois and Chris Van Hollen (D) of Maryland, he says.

"What does that tell you? Nobody is closer to the ground [than they are] in understanding what you want your candidates to run on." In the wake of congressional corruption scandals in the last Congress, Democrats knew they needed "a credible case that Congress has cleaned up its act or they couldn't ask voters to send them back," Ornstein adds.

In the run-up to this week's vote, public-interest groups who had rallied behind lobby and ethics reform fell out over whether the reform had gone far enough. A key sticking point is proposed language over how lawmakers will disclose member-sponsored projects, or earmarks.

The legislation requires that earmarks included in bills and conference reports, and their sponsors, be identified on the Internet at least 48 hours before the Senate votes. But the revised bill leaves it to the Senate majority leader or committee chairmen, rather than the Senate parliamentarian, to certify that all earmarks have been identified. The original Senate language allowed members to raise a point of order against individual earmarks on the floor of the Senate. Under the proposed new law, they could raise objections only if the required list were not provided.

"Americans are fed up with special interest earmarks that have been at the center of recent scandals," says Sen. Jim DeMint (R) of South Carolina, who blocked moves to a conference on lobby and ethics reform until he had assurances from Senate majority leader Harry Reid that strong earmark provisions would remain in the final bill. "It is ironic that Senator Reid has seen fit to rewrite a bill in secret that is supposed to provide transparency and sunlight. I'm especially disappointed in Speaker Pelosi, who started this debate with strong rhetoric for earmark disclosure. She completely yielded to Reid and pressure from lobbyists," he said in a statement.

Some public interest groups are backing Senator DeMint in what they see as a lively floor fight in the Senate, expected on Thursday. "The taxpayers' worst fears have been realized. Prototypical of Washington backroom deals, House and Senate Democrats have conjured up a deal that benefits only the powerful appropriators and the special interests that game the system at the expense of average Americans," said Tom Schatz, president of the Council of Citizens Against Government Waste.

But many other open-government groups praise the legislation for moving reform further than it has gone in any previous Congress.

"If you compare where we were in 2006, it's a giant step forward. It could have been two giant steps forward," says Bill Allison, senior fellow for the Sunlight Foundation, a public interest group that promotes transparency in government.

A key provision that was dropped in the final version of this bill would have made lists of congressional earmarks available on a searchable database. The new version makes that requirement only "if technically feasible."

"This is something Amazon.com does every day with its eyes closed," says Mr. Allison. "We're still going to be in a situation where public interest groups are going to have to get earmarks in a form that's usable. Congress should have done this itself and didn't."




Judge says eBay can keep using 'buy it now'
Court Feed News | 2007/07/31 16:32

A U.S. district court judge has ruled that eBay Inc. can continue to use its "buy it now" feature even though a patent infringement ruling against the feature continues to stand. Judge Jerome Friedman of the U.S. District Court for the Eastern District of Virginia denied an injunction request by MercExchange LLC, which successfully sued eBay for patent infringement in 2003. But Friedman also said he would move forward with MercExchange's efforts to collect the US$25 million patent infringement award against eBay.

If Friedman decides eBay has not designed around the patent, MercExchange could collect "hundreds of millions" of dollars in ongoing infringement fees, said Gregory Stillman, MercExchange's lawyer and a partner in the Hunton & Williams LLP law firm.

"The functionality of 'buy it now' is exactly the same as it was four years ago," Stillman said Monday.

MercExchange spokesman Michael Caputo called eBay a "rank infringer."

An eBay representative wasn't immediately available for comment.

MercExchange may appeal the district court decision on the injunction, Stillman said. That would continue a long battle between the two companies, one in which the U.S. Supreme Court has gotten involved.

The district court originally denied MercExchange's request for a permanent injunction, but the Virginia company appealed the ruling.

The U.S. Court of Appeals for the Federal Circuit took the case and granted MercExchange an injunction, continuing the court's long-standing practice of granting injunctions in nearly every patent infringement case. But the Supreme Court, in May 2006, overturned the appeals court ruling, saying judges must weigh several factors before granting an injunction.

The Supreme Court sent the case back to Friedman to determine whether an injunction was warranted.

Friedman ruled that the injunction request did not pass the four-part test now required by the Supreme Court. MercExchange has tried to sell patent licenses and its patents to other companies, suggesting that monetary damages are adequate, Friedman wrote.

Since the original judgment in the case, U.S. Patent and Trademark Office has also issued two interim findings that the MercExchange patent is invalid, Friedman wrote.

A permanent injunction would also hurt the public, the judge wrote.

"EBay is a multi-billion dollar corporation whose online marketplace brings together tens of millions of buyers and sellers around the world and eBay unquestionably has a substantial impact on the United States' economy," he wrote. "In contrast, MercExchange is a company with two employees that work out of their homes and appear to specialize in litigation and obtaining royalties based on the threat of litigation."

The district court's ruling on the injunction isn't surprising, given the Supreme Court decision and district court's original ruling, said Sarah King, a partner in Howard Rice Nemerovski Canady Falk & Rabkin PC's intellectual property litigation group in San Francisco.

But the ruling is part of a "creeping sea change" in patentholder rights since the Supreme Court ruling, she said. "No longer will patentholders necessarily have the power to shut a company down for patent infringement," she said. "It really removes from the quiver of the patentholder a very powerful arrow that they hold against infringers."



Taking Aim at D.C.’s Gun Law
Attorney Blogs | 2007/07/31 14:33
The District of Columbia has the most restrictive gun laws in the country. But that’s a distinction the nation’s capital will soon lose—if Robert Levy prevails. Levy was born in Washington, but left years ago; a resident of Naples, Fla., who made a fortune as an investment analyst, he is now a senior fellow in constitutional studies at the libertarian Cato Institute. A critic of what he sees as unnecessary government regulation, he rounded up six D.C. plaintiffs who either owned firearms or wanted to, for self-protection, and helped bankroll their challenge to the city’s gun law—which makes it illegal to own or possess an unregistered handgun (D.C. stopped registering handguns back in 1978). The city permits registered “long” guns like shotguns and rifles, but they must be disassembled or disabled with trigger locks, and it’s illegal to use a firearm of any kind in self-defense—even in the owner’s home.

The suit, which is being bankrolled by Levy, has been successful so far; in March, the U.S. Court of Appeals for the D.C. Circuit found the gun law unconstitutional. Earlier this month, D.C. officials announced plans to take the case (Parker v. District of Columbia) to the Supreme Court, in hopes of having the appeals court’s ruling overturned. If the high court agrees to hear Parker, it could finally settle one of the biggest arguments in constitutional law: whether the Second Amendment’s right to “keep and bear arms” is an individual right or was meant to apply only to members of a “well-regulated militia.” NEWSWEEK’s Daren Briscoe spoke with Levy about the suit’s prospects, and what drove him to bring it to court. Excerpts:

NEWSWEEK: Why did you file this suit?

Robert Levy:
First, because I’m a fervent believer in the Constitution, including the Second Amendment, and I read the Second Amendment as securing an individual’s right to keep and bear arms. In most jurisdictions, the courts have read the Second Amendment only to protect members of militias.  In D.C., that issue has not been resolved.  I saw an opportunity, with my two co-counsels, to vindicate Second Amendment rights and to establish a precedent that, if it reached the Supreme Court, would be applicable across the nation.

You don’t own any guns personally.  Why not?

While I believe the Constitution secures my right to own guns, as a practical matter, I don’t sense the need to do so.  I live in a safe area, a relatively affluent area, and crime isn’t a major issue where I live.  I don’t have the same need for self-defense as the six plaintiffs in the Parker case.

Why is the Second Amendment so important?

Originally it was important as a protection accorded to American citizens against a tyrannical government. But even before the Constitution was written, even before the U.S. government was formed, the right existed.  It was a means of self-defense, and today the right to bear arms protects us against predators.  It’s important to note that the Second Amendment doesn’t grant a right to bear arms.  It says the right to keep and bear arms “shall not be infringed,” meaning that it already existed.

How expansive is your view of what the Second Amendment protects?  What if I want to walk around carrying a fully automatic machine gun?

The right to keep and bear arms, like all other rights, is not absolute.  Under the First Amendment, we can’t incite other people to riot. Under the Fourth Amendment, reasonable searches are permitted.  Well, in the case of the Second Amendment, there can be reasonable regulations.  It’s quite clear that some weapons can be regulated, weapons of mass destruction, for instance.  Some persons can be regulated against bearing arms, minors for instance.  Some uses can be and are regulated.  Uses of guns in crimes, for instance.  The question is what constitutes reasonable regulation.

D.C.’s mayor, Adrian Fenty, says that the gun laws have saved countless lives by keeping guns out of the hands of those who would hurt themselves or others.  What's your response to that?

I've looked at the evidence.  I've taught regression analysis and statistical inference, so I know a little bit about how to understand what it means, and the evidence is that gun laws do not help.  Gun restrictions tend to increase violence.  So, on both a constitutional basis and as a general matter, these gun restrictions have been counterproductive.  The evidence is that more gun laws lead to increased crime and more guns lead to decreased crime.

You're paying for this case out of your own pocket.  How much has it cost you?
I have paid for the whole thing, but a good part of this case was put together on donated time on the part of the attorneys involved.  My co-counsel Clark Neily and I are working on this pro bono, and our lead counsel, Alan Gura, is working at subsistence-level wages.  But I've spent a sizable sum of money, a substantial five-figure number.




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