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Court hears arguments in Katrina levee lawsuits
Headline News | 2007/06/07 16:52

In November, a judge gave hope to homeowners trying to collect insurance money for flood damage caused by Hurricane Katrina. Now, that decision is under scrutiny by a federal appeals court where a judge has promised a speedy decision. U.S. District Judge Stanwood Duval Jr. sided with policyholders who argued that language excluding water damage from some insurance policies was ambiguous. Duval said the policies did not distinguish between floods caused by an act of God _ such as excessive rainfall _ and those that are not, which would include the levee breaches following Katrina's landfall.

Duval allowed a lawsuit against The Allstate Corp., The St. Paul Travelers Companies Inc. and other insurers to proceed, but said the issue of "flood exclusion" could be appealed by the companies.

A hearing on the appeal was held Wednesday at the 5th U.S. Circuit Court of Appeals. A three-judge panel heard arguments from lawyers for policyholders and several insurance companies. Rulings from the appeals court often take months but Judge Carolyn King, one of the three judges, said a decision would come as quickly as possible.

"This case is not just going to take in the queue. It's going to the head of the list," she said.

Insurers say their homeowner policies do not cover damage from any type of flooding, including water from the levees that broke in the aftermath of the Aug. 29, 2005, storm.

"The generally prevailing meaning of the word flood includes what happened during and after Hurricane Katrina in this city," Richard Doren, lawyer for Lexington Insurance Co. argued Wednesday.

The insurance industry stands to lose an estimated $1 billion ($740 million) in Louisiana if policyholders successfully challenge companies' refusal to cover damage from levee breaches, said Robert Hartwig, chief economist at the industry-funded Insurance Information Institute in New York.

In court papers, a lawyer for policyholders with consolidated cases against insurers said Duval properly concluded that the definition of "flood" in policies is limited to "naturally occurring events."

But plaintiffs' attorney John Ellison accuses insurers of purposely not defining the term 'flood' and deliberately drafting vague policy language "to frustrate the reasonable expectations of Louisiana homeowner policyholders from whom they collected premiums for years."

"It's difficult to think of a more important or significant issue that needs to be resolved with respect to Louisiana law," Ellison said Wednesday.

Lexington Insurance Co. attorneys argue that punishing insurers for failing to define common words like "flood" could force them to engage in "defensive over-specification, which would inevitably lead to longer policies that are less comprehensible to most policyholders."

Duval agreed last year to dismiss State Farm Insurance Cos. from the litigation. He ruled that State Farm's policies included language that clearly excluded all flood damage, regardless of the cause.



High Court Ruling Could Be Boon for Retailers
Headline News | 2007/06/05 13:43

A Supreme Court ruling handed down Monday could be good news for more than 100 major retailers targeted by class-action lawsuits alleging that the companies failed to comply with a law designed to protect consumers from identity theft. The retailers -- including Rite Aid, KB Toys, Regal Cinemas and In-N-Out Burger -- have been sued for allegedly violating an amendment to the Fair Credit Reporting Act (FCRA) that requires companies to remove full credit card numbers and expiration dates from printed customer receipts.

The new protections, added in the Fair and Accurate Transactions Act, went into effect in early December 2006. The provisions were meant to protect shoppers from identity thieves, who have been known to dig through trash dumps to steal receipts in search of credit-card information.

Very shortly after the law took effect, class-action lawyers pounced, charging that dozens of retailers had violated the FCRA by continuing to print receipts without redacting all or some of the data . Citing what they called questionable wording in the statute, attorneys for the retailers claimed their clients were operating under the position that compliance with the law meant redacting either the credit card number or the expiration date, but not necessarily both. (Judge for yourself - the statute reads: "No person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt... .")

Companies found guilty of failing to observe this portion of the FCRA can be fined between $100 to $1,000 per violation, a potentially huge sum for retailers that print tens of thousands of receipts per day.

The plaintiffs filed most of their cases in California, where the Ninth Circuit Court of Appeals had issued a pair of decisions that signaled it was apt to be more lenient in deciding which actions (or inactions) constitute a "willful" violation of the FCRA. The Ninth Circuit sent that signal in Safeco Insurance v. Burr and Geico General Insurance v. Edo, saying the insurers violated the FCRA when they failed to tell customers anytime that low credit scores affected the rates they paid. The AP story on Monday's decision says that consumer groups point to the notification requirement in FCRA as "the cornerstone to cleansing credit reports of inaccurate information."

The Ninth Circuit held that defendants could be found liable for a willful violation of the FCRA absent proof that they either actually knew that they would be violating the statute or acted in reckless disregard of whether they were violating it.

The two insurance cases were appealed to the Supreme Court, which on Monday reversed the Ninth Circuit's opinions, sending them back to the lower courts for further deliberation. The High Court's majority opinion, written by Justice David Souter, effectively confined the Ninth Circuit's open-ended definition of what kinds of actions constitute reckless disregard. In order for a company to be found liable for a reckless violation, Souter wrote, its conduct must involve an unjustifiably high risk of harm that is either known to a company or is so obvious that it should have been known.

Charles A. Patrizia, a partner with the Washington office of law firm Paul Hastings, which is representing a number of the retailers targeted in the class-action suits,
said the high court's ruling was a positive development for the defendants, but he doubted that the any of the plaintiffs would go so far as to drop their cases as a result of today's decision.

"So now the question becomes, even with the expiration date printed on the receipt and only part of the credit card number, is there an unjustifiably high risk that someone is going to figure out a way to guess those last missing digits and use it? That risk seems pretty low."

Mark Rasch, a former Justice Department prosecutor who now serves as a managing director at FTI Consulting, called Monday's decision good news for the retailers in the class-action cases, but said the jury was still out for its impact on consumer rights.

"While this decision doesn't mean companies can avoid liability simply by avoiding knowing about legal requirements, it means companies are free to be wrong, as long as they're not grossly wrong," Rasch said.



Florida Doesn't Have to Pay Nudist's Fee
Headline News | 2007/06/04 15:40

The Supreme Court made it harder Monday to recover legal fees from the government, ruling against a woman who sued for the right to form a peace sign in the nude in a Florida park. The justices ruled unanimously against Toni Anne Wyner, a nudist from Fort Pierce, Fla. Wyner won a federal court ruling that allowed her and other performers to go forward with their protest in the nude on Valentine's Day 2003.

Based on the order, known as a preliminary injunction, a federal judge ruled that Florida should pay Wyner's lawyers $25,000 in legal fees.

But Wyner's lawsuit also was a broader challenge to a Florida law that bans nudity on beaches, arguing that the law violated her First Amendment right of free expression.

Wyner lost that fight and the Supreme Court said that what matters is the final resolution of the lawsuit.

"Here, at the end of the fray, Florida prevailed in the suit. The state's bathing suit rule remained intact," Justice Ruth Bader Ginsburg said in her opinion for the court.

Ginsburg cautioned that the court was taking no position "on the extent to which the First Amendment protects artworks that involve nudity."

Because the case had the potential for broad impact on lawsuits against governments generally, the Bush administration and 24 states joined Florida in urging the court to reverse the award of attorney's fees.

An unusual array of conservative and liberal interest groups came together in support of Wyner, arguing that public interest law firms would be left without any compensation in many cases.

The governments wanted the court to rule that parties who win preliminary injunctions can never recover attorney's fees.

The court, however, left unanswered what happens in lawsuits in which "the preliminary injunction essentially resolves the whole case and ends the litigation," said Andrew Pincus, a partner with the Mayer, Brown, Rowe & Maw law firm who filed a brief on behalf of the interest groups.



Supreme Court to Reconsider Dog Mauling Verdict
Headline News | 2007/06/01 14:44

A dog owner who knows the animal is a potential killer and exposes other people to the danger may be guilty of murder for a fatal attack, the state Supreme Court said Thursday in a ruling that could reinstate a woman's murder conviction for the mauling death of her neighbor in a San Francisco apartment building. In a unanimous decision, the court ordered a Superior Court judge to consider restoring a jury's second-degree murder conviction of Marjorie Knoller in the January 2001 mauling of Diane Whipple.

The trial judge reduced Knoller's conviction to involuntary manslaughter, saying the defendant hadn't known her 140-pound Presa Canario was likely to kill someone. A state appeals court overruled the judge and said a defendant who knows he or she is subjecting someone to a danger of serious injury can be guilty of murder if the victim dies.

On Thursday, the state's high court rejected both the lower-court standards and said Knoller, or any other defendant responsible for unintentional but fatal injuries, can be convicted of murder if they acted with "conscious disregard of the danger to human life.''

A new San Francisco judge, replacing the now-retired trial judge, will now apply that standard, review the trial record and decide whether Knoller is guilty of murder or manslaughter.

"This is a great victory for the prosecution and the victims of a horrendous crime,'' San Francisco District Attorney Kamala Harris said. "We believe the defendant should be sentenced as originally mandated by the jury."

Knoller, 51, who now lives in Florida, was paroled in 2004 after serving most of a four-year sentence for manslaughter. If her murder conviction is reinstated, she must return to prison for a term of 15 years to life.

Her attorney Dennis Riordan praised the ruling and said Knoller believes the new judge "will again find that the evidence in her case is clearly insufficient to support a second-degree murder conviction.''

But Deputy Attorney General Amy Haddix, the state's lawyer, said Knoller was the "poster child'' for a murder case under the new standards. Haddix said the evidence showed that Knoller had taken a dangerous, aggressive and unmuzzled dog, which she knew she could not control, into an area where it was likely to encounter people.

"I don't think that's any different than driving a car at high speeds when highly intoxicated, which has long been recognized as an act that knowingly endangers human life,'' Haddix said.

Knoller and her husband and law partner, Robert Noel, were keeping two Presa Canario dogs for their owner, a state prison inmate whom they later adopted. On the day of the attack, Knoller took the male dog, Bane, to the roof of her apartment building at Pacific Avenue and Fillmore Street, then returned to the sixth-floor hallway where Whipple, a 33-year-old lacrosse coach, was entering her apartment with two bags of groceries.

Bane charged at Whipple and jumped on her. The dog's 100-pound mate, Hera, bolted out of the couple's apartment and may have joined the attack. Medical examiners found that Whipple suffered 77 wounds, including a fatal puncture to the neck.

Noel was convicted of manslaughter for leaving the dogs with his wife, and was paroled in 2004. Their trial was transferred to Los Angeles after the couple's pretrial statements generated widespread hostility.

In interviews after the attack, Knoller said she had tried to protect Whipple and suggested that her neighbor was responsible for her own death by remaining in the hallway. At her trial, she described Bane as "gentle and loving and affectionate'' and denied having been warned that the dogs were dangerous.

But the Supreme Court said Thursday that there had been about 30 incidents before the attack on Whipple in which the dogs were out of control or threatening humans and other dogs. In response to neighbors' complaints, the couple "responded callously, if at all,'' the court said.

The justices also noted that Knoller and Noel had agreed with the prisoner who owned the dogs that they would name a dog-breeding enterprise "Dog-O-War.''

After the jury verdict, Superior Court Judge James Warren said he was convinced Knoller had been aware that the dogs were dangerous. But he said she was innocent of murder because she had not known her conduct posed a "high probability of death."

As an additional ground for reducing Knoller's conviction, Warren said he thought Noel, charged only with manslaughter, was the guiltier of the two because he had left his wife alone with the dogs, despite knowing that she could not control them.

The now-retired Warren applied the wrong legal standards to both questions, the state's high court said Thursday.

A defendant who knowingly subjects others to a risk of death can be guilty of murder, regardless of whether the conduct created a high probability of death, Justice Joyce Kennard said in the unanimous ruling. She also said judges generally can't second-guess prosecutors' decisions on whether defendants should face different charges.



Lawyer accuses GE of discrimination
Headline News | 2007/05/31 12:49

A high-ranking lawyer fighting her demotion sued General Electric Co. on Thursday, accusing the industrial conglomerate of gender discrimination in a lawsuit that also seeks to represent about 1,500 female employees. Lorene F. Schaefer, who said she was placed on paid administrative leave earlier this month from her job as GE Transportation's general counsel, filed the lawsuit in U.S. District Court in Bridgeport.

The lawsuit alleges that GE pays female lawyers and women in entry-level executive jobs less than men. The lawsuit also accuses the Fairfield-based GE of failing to promote its female entry level executives, or executive band employees, at the same rate it promotes men in the same jobs.

A call was placed to GE Thursday morning seeking comment.

Schaefer is asking a judge to certify a class of 1,500 plaintiffs that includes female entry-level executives and all female lawyers, potentially seeking damages of $500 million.

"It's a corporate culture. You know you're in a very male-dominated culture," said Schaefer, who as general counsel was the top legal officer for Erie, Pa.-based GE Transportation.

Schaefer, 43, accused GE in her lawsuit of failing to promote female lawyers from senior professional level to executive, from executive to senior executive and from senior executive to the officer level at the same rate as it promotes male lawyers.

Schaefer was an executive band employee since 1997 and a GE employee since 1994. She said she decided to sue in April after learning that she was to be demoted from her job, which paid $380,000 last year, including bonuses.

Executives, including chairman and chief executive Jeff Immelt, decided she was to be replaced by a "big-time general counsel," she said.

"I had never heard those terms, 'big-time general counsel," she said.

Schaefer said she was placed on paid administrative leave earlier this month when she complained about the impending demotion.

The lawsuit, which seeks an injunction to halt GE's pay and promotion policies and practices, names Immelt and numerous other executives.

The lawsuit says Immelt has taken responsibility for changing the top leadership of GE since he became chief executive in 2001. But female senior professional employees comprise about 20 percent, "a disproportionately small percentage," Schaefer says in her lawsuit.

"Women at GE have remained in this disproportionately underrepresented level for the past five years since CEO Immelt took," the lawsuit says.

GE Transportation, a part of the corporation's infrastructure unit, posted revenue of nearly $4.2 billion last year. It comprises aircraft engine and locomotive manufacturing and motorized systems for mining trucks and drills, gas turbines for marine and industrial applications.



Giuliani's law firm also donates to Democrats
Headline News | 2007/05/30 16:31

Republican presidential candidate Rudy Giuliani is partner in a law firm with a generous political action committee -- one that gave nearly 40 percent of its contributions to Democrats in the 2006 midterm elections, including $5,000 to then-Democratic House leader Nancy Pelosi of San Francisco.

The 2006 donations from the political action committee of the Houston-based law firm of Bracewell & Giuliani -- known as Bracepac -- included $3,000 to Democratic Sen. Dianne Feinstein of San Francisco.

Bracepac contributed to 53 Democratic candidates and 50 Republicans in the 2006 election cycle, federal records show.

Some Republican insiders said the campaign contributions by Giuliani's firm will have no influence on the former New York City mayor's attempts to woo conservative and grassroots voters away from the other leading GOP presidential candidates, Arizona Sen. John McCain and former Massachusetts Gov. Mitt Romney.

"If the donations were in Rudy Giuliani's name, or his wife's name, that would be a problem," said Bill Whalen, a Hoover Institution research fellow and former speechwriter to Republican Gov. Pete Wilson. "But it's the reality of modern-day politics ... and under the larger category of doing business. He's a partner in a law firm that wants to do business on both sides of the street -- so you give to Republicans and Democrats."

Giuliani is among a group of 2008 presidential hopefuls who are in California this week for fundraising and public events including Democrats John Edwards of North Carolina, Sen. Hillary Rodham Clinton of New York, Sen. Barack Obama of Illinois and Republican McCain.

As the already busy presidential campaign gathers speed, the hopeful candidates are certain to face increasing scrutiny on their lives inside and outside of politics including issues such as the political contributions by the former mayor's law firm.

Giuliani already has faced questions about his income from the law firm, as a security consultant and as a public speaker, a field in which he reaped $11.3 million last year, federal records show.

The Houston Chronicle reported this month that Giuliani has been paid at least $1.2 million by Bracewell & Giuliani. Texas Lawyer reported that he also received $690,000 in partners' profits last year.

Scott Segal, a partner in Bracewell & Giuliani, said Tuesday in response to questions that the firm's "approach to government relations is bipartisan and bicameral."

Indeed, the firm's political donations are controlled entirely by its political committee. Insiders point out that Giuliani is not a member of that committee and makes no decisions related to its political contributions.

Maria Comella, a spokeswoman for Giuliani's campaign, said in an e-mail Tuesday that "the PAC is not representative of the mayor's beliefs," adding that "people donate to Mayor Giuliani based on their belief in his candidacy, not the other way around."

Bracewell & Giuliani has also been a high-profile lobbying firm, receiving nearly $6 million in lobbying fees last year with a client list that included the National Petrochemical and Refiners Association - which fought regulations to reduce greenhouse gases - and the Electric Reliability Coordinating Council, an industry group formed in part to fight pollution controls for coal-fired plants.

Giuliani's chief policy adviser, Bill Simon - a former Republican candidate for California governor - said he expects Giuliani will be subject to examination by the public in the campaign and believes voters will fairly judge the former mayor's experience and long record of public service.

"I think any presidential contest is going to involve a lot of scrutiny, and the mayor has been a very, very successful individual on a number of different activities," Simon said. Opponents and the media "will look hard at the mayor's record and occasionally distort it."



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