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Attorneys challenging bankruptcy court
Headline News | 2007/08/03 17:03

Anticipating that the bankruptcy court may soon send child sexual-abuse lawsuits to trial, lawyers for the San Diego diocese are seeking to have a different federal judge determine how much the cases are worth. Attorneys for Bishop Robert Brom say a reason for the move is that they plan to make a legal challenge on constitutional grounds that is unsuited to be heard in bankruptcy court.

But lawyers for nearly 160 men and women who have sued the Roman Catholic diocese for covering up sexual abuse by clergy members and others say the bishop is merely trying to duck the public specter of jury trials.

Meanwhile, weeks of closed mediation talks with a federal magistrate have failed to produce a settlement of the abuse claims, nearly all of which were filed in 2003.

A key question now is: What is likely to spur a settlement?

Veteran legal observers say to look no further than last month's record, $660 million agreement between Los Angeles Cardinal Roger Mahony and attorneys for 508 plaintiffs to see the effect a looming trial has on settlement talks. The Los Angeles diocese settled on the eve of the first trial there.

The matter of how to value the abuse lawsuits is set to be debated before federal bankruptcy Judge Louise DeCarl Adler on Aug. 23. She will consider a motion by the victims' attorneys to send dozens of the lawsuits back to state court for trial dates.

The diocese wants to take the matter out of Adler's hands, however. Brom's attorneys, in a motion filed two weeks ago, are asking a U.S. District judge to estimate the value of the abuse lawsuits in a way that does not involve testimony in open court.

In a response filed yesterday, attorneys representing the sexual-abuse victims called that idea "forum shopping."

They said the diocese's action is about "fleeing a state court system that has resulted in average settlements well above the amount it wants to pay."

The diocese has offered $95 million, or about $600,000 per victim on average, to settle the abuse lawsuits and emerge from Chapter 11 bankruptcy protection.

Diocese attorneys say that offer reflects Brom's goal of trying to fairly compensate the victims while protecting the church's mission of educating Catholic children and ministering to the spiritual needs of parishioners.

In court documents filed yesterday, plaintiffs' attorneys note that the Orange County diocese settled more than 90 abuse suits in 2004 for an average of $1.15 million apiece, and that the Los Angeles cases settled for $1.3 million on average.

In March, on the first day of the bankruptcy case, Adler made it clear that she would "not be deciding the merits of the abuse cases."

She said the value of the abuse claims will be resolved in one of three ways: They will be settled before a mediator, arbitrator or settlement judge; they may be estimated by the U.S. District Court; or they will be tried.

Closed mediation talks continue before Magistrate Judge Leo Papas. An intense week of mediation is scheduled beginning Aug. 13, in advance of Adler's ruling on whether to release the cases for state court trials.

The diocese's request to have the case-valuation issue decided by a U.S. District judge – whose power supersedes that of bankruptcy court judges – is expected to be considered soon. No hearing date has been set. One reason diocese attorneys give for wanting the matter placed before a U.S. District judge is that they hope to again argue that the 2002 California law allowing lawsuits regarding decades-old abuse incidents is unconstitutional.

The diocese has raised that issue twice before in state court and once in federal court. It lost each time.

A man with long experience mediating and deciding such complex and high-stakes issues is retired U.S. District Judge Lawrence Irving.

"I've handled a lot of mass tort (personal-injury) cases, and one thing is typical of all of them: They never go to trial," Irving said.

"What will force the diocese to settle these cases is to set them for trial immediately. And remember, both the bankruptcy judge and a U.S. District judge have the power to remand these cases for trial."



Court: FBI Violated Constitution in Raid
Lawyer Blog News | 2007/08/03 17:01

The FBI violated the Constitution when agents raided U.S. Rep. William Jefferson's office last year and viewed legislative documents in a corruption investigation, a federal appeals court ruled Friday. The court ordered the Justice Department to return any legislative documents it seized from the Louisiana Democrat's office on Capitol Hill. The court did not order the return of all the documents seized in the raid and did not say whether prosecutors could use any of the records against Jefferson in their bribery case.

Jefferson argued that the first-of-its-kind raid trampled congressional independence. The Constitution prohibits the executive branch from using its law enforcement powers to interfere with the lawmaking process. The Justice Department said that declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker's documents.

The U.S. Court of Appeals for the District of Columbia Circuit rejected that claim. The court held that, while the search itself was constitutional, FBI agents crossed the line when they viewed every record in the office without giving Jefferson the chance to argue that some documents involved legislative business.

"The review of the Congressman's paper files when the search was executed exposed legislative material to the Executive" and violated the Constitution, the court wrote. "The Congressman is entitled to the return of documents that the court determines to be privileged."

The raid was part of a 16-month international bribery investigation of Jefferson, who allegedly accepted $100,000 from a telecommunications businessman, $90,000 of which was later recovered in a freezer in the congressman's Washington home.

Jefferson pleaded not guilty in June to charges of soliciting more than $500,000 in bribes while using his office to broker business deals in Africa. The Justice Department said it built that case without using the disputed documents from the raid.

The court did not rule whether, because portions of the search were illegal, prosecutors should be barred from using any of the records in their case against Jefferson. That will be decided by the federal judge in Virginia who is presiding over the criminal case.

"Today's opinion underscores the fact that the Department of Justice is required to follow the law, and that it is bound to abide by the Constitution," defense attorney Robert Trout, said, promising more legal challenges to "overreaching by the government in this case."

The Justice Department did not immediately return messages seeking comment on the decision. Officials have said they took extraordinary steps, including using an FBI "filter team" not involved in the case to review the congressional documents. Government attorneys said the Constitution was not intended to shield lawmakers from prosecution for political corruption.

The court was not convinced. It said the Constitution insists that lawmakers must be free from any intrusion into their congressional duties. Such intrusion, even by a filter team, "may therefore chill the exchange of views with respect to legislative activity," the court held.

The case has cut across political party lines. Former House Speakers Newt Gingrich, a Republican, and Thomas Foley, a Democrat, filed legal documents opposing the raid, along with former House Minority Leader Bob Michel, a Republican.

Conservative groups Judicial Watch and the Washington Legal Foundation were joined by the liberal Citizens for Responsibility and Ethics in Washington in supporting the legality of the raid.

Following his indictment, Jefferson's supporters accused the Bush administration of targeting black Democrats to shift attention from the legal troubles of Republican congressmen.

"We are confident that as this case moves forward, and when all of the facts are known, we will prevail again and clear Congressman Jefferson's name," Trout said Friday.

Despite the looming investigation, Jefferson was re-elected to a ninth term in 2006. His win complicated things for Democratic leaders who promised to run the most ethical Congress in history.

House Speaker Nancy Pelosi, D-Calif., stripped Jefferson of his seat on the powerful Ways and Means Committee and placed him instead on the Small Business Committee. He resigned that committee assignment after being indicted.

The case was considered by Chief Judge Douglas H. Ginsburg, Judge Karen Lecraft Henderson and Judge Judith W. Rogers.



Bush wants terrorism law updated
Law & Politics | 2007/08/03 14:57
President Bush wants Congress to modernize a law that governs how intelligence agencies monitor the communications of suspected terrorists. The Foreign Intelligence Surveillance Act, or FISA, provides a legal foundation that allows information about terrorists‘ communications to be collected without violating civil liberties. Bush noted that terrorists now use disposable cell phones and the Internet to communicate, recruit operatives and plan attacks; such tools were not available when FISA passed nearly 30 years ago. He also cited a recently released intelligence estimate that concluded al-Qaida is using its growing strength in the Middle East to plot attacks on U.S. soil.

Sen. Russ Feingold, D-Wis., said Bush was trying to exploit the threat from al-Qaida to push the bill. Feingold said the measure was an "egregious power grab that includes broad new powers that have nothing to do with bringing FISA up to date."

Shortly after the Sept. 11 attacks, Bush authorized the NSA to spy on calls between people in the U.S. and suspected terrorists abroad without FISA court warrants. The administration said it needed to act more quickly than the court could. It also said the president had inherent authority under the Constitution to order warrantless domestic spying.

The national intelligence director, in a letter Wednesday to the House intelligence committee, stressed the need to be able to collect intelligence about foreign terrorists overseas. Mike McConnell said intelligence agencies should be able to do that without requirements imposed by an "out of date" law.

Reyes said Saturday that the committee is intently focused on the issue.

Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, contends the White House is asking for more power to conduct warrantless domestic and international surveillance.

The ACLU said the legislation backed by the administration would give immunity from criminal prosecution and civil liability for the telecommunication companies that participate in the NSA program. The ACLU urged lawmakers to find out the full extent of current intelligence gathering under FISA before making changes.

The House Republican leader, Rep. John Boehner of Ohio, said Democrats are delaying necessary changes.

"Rather than learning the lessons of September 11 — that we need to break down the bureaucratic impediments to intelligence collection and analysis — Democrats have stonewalled Republican attempts to modernize FISA and close the terrorist loophole," he said Saturday.



ATRS, NY Firm Settle Class-Action Against PharmaNet
Class Action News | 2007/08/03 14:03

Arkansas Teacher Retirement System and Bernstein Litowitz Berger & Grossmann LLP, a New York law firm, announced Thursday that they have settled, for a total of $28.5 million, the securities class-action lawsuit against PharmaNet Development Group Inc. The class action, pending in the United States District Court for the District of New Jersey, is led by court-appointed lead plaintiff Arkansas Teacher Retirement System and is captioned In re SFBC International, Inc. Sec. Litigation, 06-cv-00165 (SRC).

PharmaNet was formerly known as SFBC International Inc.

Under the settlement agreement, the class will be paid $28.5 million, of which $24.5 million will be in cash and $4 million may be either in cash or in stock, at the election of the company. The settlement requires contributions from a number of different defendants, and specifically requires certain of the company's former directors, officers and employees to make a personal contribution towards the settlement of the class' claims.

"We are pleased to have reached a settlement of this securities class action on terms that provide a significant benefit to the class, while permitting the company and its new management to focus on the future. We believe that the personal contribution portion of this settlement sends a clear message that shareholders will insist that the directors, officers and employees of publicly traded companies live up to their responsibilities to act as vigilant guardians for the interests of the shareholders they represent," said Paul Doane, director of ATRS.



Kirby McInerney & Squire LLP Announces Class Action Lawsuit
Court Feed News | 2007/08/03 13:04
Kirby McInerney & Squire, LLP announces that it has filed a class action lawsuit in the United States District Court for the Eastern District of New York on behalf of all persons who purchased or otherwise acquired the publicly traded securities of American Home Mortgage Investment Corp. ("American Home Mortgage" or the "Company") (Nasdaq:AHM) between April 26, 2006 and July 30, 2007, inclusive, (the "Class Period").

The lawsuit alleges that American Home Mortgage and certain of its officers and directors violated Federal Securities laws. According to the complaint, throughout the Class Period defendants failed to disclose, among other things, that the Company was operating without adequate reserves for delinquent loan repurchases or an adequate strategic plan in relation to the volatility of certain of American Home Mortgage's loan products. As a result of defendants' failure to fully disclose that the Company was operating without adequate reserves in relation to the Company's prior sales of certain of American Home Mortgage's loan products or an adequate strategic plan for the repurchase of delinquent previously sold loans, defendants materially misrepresented to investors the true facts concerning American Home Mortgage's financial performance and prospects.

Then, on June 28, 2007, American Home Mortgage issued a press release announcing that it will take "substantial charges for credit-related expenses in the second quarter." The Company reported that the increase in losses was related to its practice of extending a three month timely payment warranty that the Company granted to loan buyers who purchased stated income loans. In response to this announcement, the price of American Home Mortgage stock declined from $20.91 per share to $18.38 per share on extremely heavy trading volume. Then, on July 27, 2007, after the close of the market, American Home Mortgage issued a press release announcing that its Board of Directors had determined to delay paying its dividend. In response to this announcement, on July 30, 2007, the NYSE halted trading in American Home Mortgage stock before the market opened.

If you are a member of the class, you may, no later than October 1, 2007, request that the Court appoint you as lead plaintiff of the class. Although your ability to share in any recovery is not affected by the decision whether or not to seek appointment as a lead plaintiff, lead plaintiffs can participate in important decisions which could affect the recovery for class members.

If you wish to discuss this action, or have any questions concerning this notice or your rights, please contact us, toll free, at (888) 529 4787 or by email at info.newcases@kmslaw.com.

Kirby McInerney & Squire, LLP has specialized in complex litigation, including securities class actions, for several decades. The firm has repeatedly demonstrated its expertise in this field, and has been recognized by various courts which have appointed the firm to major positions in consolidated and multi-district litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling hundreds of millions of dollars, and the firm's achievements and quality of service have been chronicled in numerous published decisions. More information about the firm, class actions in general, or about the role of the lead plaintiffs in a securities class action can be obtained through Kirby McInerney & Squire, LLP's website at http://www.kmslaw.com



Court puts limits on surveillance abroad
Lawyer Blog News | 2007/08/02 15:40

A special court that has routinely approved eavesdropping operations has put new restrictions on the ability of U.S. spy agencies to intercept e-mails and telephone calls of suspected terrorists overseas, U.S. officials said Wednesday. The previously undisclosed ruling by the Foreign Intelligence Surveillance Court has prompted concern among senior intelligence officials and lawmakers that the efforts of U.S. spy agencies to track terrorism suspects might be impaired at a time when analysts have warned that the United States is under heightened risk of attack.

It also has triggered a push in Congress this week to pass temporary legislation that would protect parts of a controversial eavesdropping program launched by the Bush administration after the Sept. 11 attacks.

The administration and Democrats are at odds over how to address the issue, leading to concerns that it might not be resolved before Congress starts its August recess Monday.

This week, congressional leaders have alluded to the recent decision by the court, which was created in 1978 as part of the Foreign Intelligence Surveillance Act.

House Minority Leader John A. Boehner (R-Ohio) said in a television interview Tuesday evening: "There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States."

Senate Intelligence Committee Chairman John D. Rockefeller IV (D-W.Va.) said Wednesday that "recent technical developments" had convinced him that "we must take some immediate but interim step to improve collection of foreign intelligence in a manner that doesn't compromise civil liberties of U.S. citizens."

Neither Rockefeller nor Boehner would elaborate, but U.S. intelligence and congressional officials familiar with the matter said they were referring to the FISA court ruling.

Boehner's remarks suggest that the ruling imposed new restrictions on the National Security Agency's ability to intercept communications that are between people overseas but that "transit" U.S. data networks operated by Internet service providers and telecommunications companies.

But other officials said the ruling's reach was broader, affecting cases "where one end is foreign and you don't know where the other is" — meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States.

One official said the issue centered on a ruling in which a FISA court judge rejected a government application for a "basket warrant" — a term that refers to court approval for surveillance activity encompassing multiple targets, rather than warrants issued on a case-by-case basis for surveillance of specific terrorism suspects.

"One FISA judge approved this, and then a second FISA judge didn't," the official said, speaking on condition of anonymity because the activities of the FISA court are classified.

The precise effect of the ruling is unclear, but a second official said that it "reduced the amount of intelligence we were collecting" on overseas terrorism suspects.

National Intelligence Director J. Michael McConnell has called attention to the issue in public testimony, telling a Senate committee May 1 that U.S. spy agencies are "actually missing a significant portion of what we should be getting" because of legal obstacles. But he has refused to identify the cause or nature of that intelligence gap.

The recent FISA court ruling was a blow to the Bush administration, which had bypassed the court when it launched the NSA program in 2001. The White House moved it back under the FISA court's supervision last year after Democrats won control of Congress and appeared poised to challenge the constitutionality of a program that monitored U.S. residents' communications without warrants.

The ruling comes at a time when U.S. intelligence agencies have warned that Al Qaeda has regrouped and is refocusing its energies on striking the U.S.

The issue has become the center of a fierce new debate on Capitol Hill over how to update the Foreign Intelligence Surveillance Act, which requires the government to get a special court's approval before monitoring communications of people in the U.S. Public records show that the court rejects few of the government's requests: In 2005, for example, it approved 2,072 applications and denied none; in 2006 it approved 2,176 and denied, in part, one.

This week, unable to agree on a broader overhaul, the Bush administration and congressional leaders have turned instead to passing temporary legislation designed to address concerns raised about the recent court ruling. Even so, they remain at odds over the FISA court's role.

Democrats have proposed a temporary fix that would give the FISA court new authority to grant court orders covering "certain aggregated foreign collection while protecting rights and privacy of U.S. persons."

But the Bush administration has pushed for broader language eliminating any requirement for a court order in cases where the target is "reasonably believed to be outside of the United States." Instead, the attorney general would have power to authorize NSA surveillance of foreign targets and to compel Internet and telecommunications companies in the United States to comply with requests for data or access to the communications flowing through their networks.

That provision has prompted significant resistance from Democrats, many of whom have been calling for the resignation of Atty. Gen. Alberto R. Gonzales over allegations that he misled Congress or lied to lawmakers in testimony about NSA surveillance activities.

In an apparent concession to those concerns, the White House modified its proposal late Wednesday to include the national intelligence director in the approval process and to allow the FISA court to review certain activities.

Gonzales made a new attempt Wednesday to tamp down the controversy over his testimony, in which he has repeatedly said there were never serious disagreements within the Bush administration or the Justice Department over the warrantless surveillance program. His statements appear to be contradicted by testimony from other officials, including FBI Director Robert S. Mueller III, who said the program had raised serious concerns.

Gonzales acknowledged Wednesday that some NSA activities authorized by Bush after Sept. 11, 2001, "did precipitate very serious disagreement" within the administration. But he stood by remarks that the agency's warrantless tracking of international phone calls and e-mail of terrorism suspects — the activity the administration has described as the Terrorist Surveillance Program — did not generate serious dissent.

"This is not to say that the legal issues raised by the Terrorist Surveillance Program were insubstantial," Gonzales wrote in a letter to Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee. "It was an extraordinary activity that presented novel and difficult issues and was, as I understand, the subject of intense deliberations within the Department."



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