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Court Rejects Maine Restrictions On Tobacco Shipping
Lawyer Blog News | 2008/02/20 09:37

The U.S. Supreme Court Wednesday unanimously rejected provisions of a Maine law that restricts the shipment of tobacco products in the state.

"Despite the importance of the public health objective, we cannot agree with Maine that the federal law creates an exemption," Justice Stephen Breyer wrote in the court's majority opinion. "The act says nothing about a public health exception."

The ruling determines that federal trucking laws bar state regulation of tobacco shipments, despite Maine's concern that tobacco products might be shipped to minors.

The state law, passed by Maine in 2003, required shippers such as United Parcel Service Inc. (UPS) to follow special handling procedures when delivering cigarettes or other tobacco products with the aim of keeping tobacco from being shipped illegally to minors. The industry challenged the provisions, arguing they were onerous, increased costs and ran afoul of the federal limit on state shipping regulations.

Major shipping companies, including UPS and FedEx Corp. (FDX), already have voluntarily agreed not to ship cigarettes in a settlement with New York over tobacco restrictions enacted in that state.

In previous legal action, the Maine law was struck down by a federal trial court. The 1st U.S. Circuit Court of Appeals in Boston affirmed lower-court rulings that held federal shipping laws pre-empted the Maine law. The Supreme Court's opinion affirms the appeals court holding.



High Court to Consider Suppression Case
Lawyer Blog News | 2008/02/19 17:09
The Supreme Court agreed Tuesday to consider whether evidence must be suppressed when authorities base an arrest on incorrect information from police files. The Coffee County, Ala., sheriff's department took Bennie Dean Herring into custody after being told by another county he was wanted for failing to appear in court on a felony charge.

In a subsequent search, the sheriff's department found methamphetamine in Herring's pockets and an unloaded gun under the front seat of his truck.

It turned out that the warrant for Herring's arrest had been recalled five months earlier.

Herring was sentenced to 27 months in prison after a jury convicted him on federal drug and gun charges.

Courts have ruled that as a deterrent to police misconduct, the fruits of an unlawful search and seizure may be excluded from evidence.

The 11th U.S. Circuit Court of Appeals in Atlanta said that suppressing evidence in Herring's case would be unlikely to deter sloppy record keeping.

The cost of suppressing the evidence, the appeals court said, would fall on the county that arrested Herring, not on the county that was negligent in its record keeping.



USDA issues largest beef recall in US history
Lawyer Blog News | 2008/02/18 10:42
An undercover video showed workers using forklifts to get sick cows to the slaughterhouse. It's that video that caused the largest beef recall in United States' history. The 143-million pounds of meat was mainly used in school cafeterias and fast food restaurants.

As disturbing as the video is, what may be more disturbing is that the animals, too sick to walk, could have ended up in the food chain.

The undercover footage was shot by the humane society, and it has lead to the largest recall of meat in United States history. The USDA has ordered more than 140 million pounds of fresh and frozen beef off store shelves. The meat was processed by the Westland/Hallmark Meat company in Chino, Calif. The Humane Society claims, this video shows cows being shocked and even pushed with a forklift to get them to walk into the slaughterhouse, so they can pass inspection. When animals are too sick too walk, it's against the law to use them for human food.

Westland/Hallmark Meat is a supplier beef to two major West Coast fast food restaurants, and the company is a major supplier for the federal school lunch program. The USDA released a statement that said in part: "We don't know how much product is out there right now, we don't think there's a health hazard, but we do have to take this action." Critics said the Feds dropped the ball.

"It's clear the USDA system failed and it allowed this company to engage in long term inhumane practices," said Paul Shapiro.

The recall covers every beef product Westland/Hallmark Meat has produced in the last two years. No charges have been brought against the company for safety issues, but two employees have been charged with animal cruelty.


Supreme Court Weighs 5 Age Bias Cases
Lawyer Blog News | 2008/02/17 20:58
There is only one anti-bias law — the one against discrimination based on age — that would cover all nine Supreme Court justices, if such laws applied to them.

The justices, ranging in age from 53 to 87, are the last people to worry about such things in their own lives. They have life tenure and no mandatory retirement age.

Yet the justices are confronted by allegations of age discrimination in five cases this term. While the sheer number of cases probably can be explained away as coincidence, the topic is one of growing importance as more people work longer because of economic necessity or by choice.

"The importance of protecting older workers as the work force ages is enormous," said Stu Cohen, AARP's director of legal advocacy. "More older workers remain in the workforce and projections are that the percentage will continue to expand."

The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year, AARP said. For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

The Age Discrimination in Employment Act applies to workers who are at least 40. It prohibits discrimination based on age in hiring and firing, promotions and pay.

"Literally every employee at some point is going to be protected by it because all of us get older. It's true whether you are a male, female, minority or not. It's not true for any other statute. It's a very broad class of protected people," said Steven R. Wall, a partner at the Morgan, Lewis & Bockius law firm in Philadelphia.

The cases at the court this year include what kind of evidence an employee may present to bolster an age discrimination claim; whether retirement-age workers are entitled to disability payments; and whether federal workers who complain about age discrimination are protected from retaliation.

The last issue is the subject of oral arguments Tuesday in a case involving a postal worker in Puerto Rico who complained of both discrimination and retaliation. Federal courts dismissed the retaliation claim, saying there is nothing in the age discrimination law that allows such claims by federal employees.

Other anti-discrimination laws do provide protection from retaliation for government workers, said Eric Dreiband, former general counsel to the Equal Employment Opportunity Commission. The language in the laws are different "and it would appear deliberately different," Dreiband said.

The AARP and the National Treasury Employees Union are backing the employee.

The most important case from employers' perspective involves "me-too" evidence in a lawsuit filed by a woman who was 51 when she was laid off by a subsidiary of Sprint Nextel Corp.

The fight at the Supreme Court is over whether she should be able to introduce testimony from other employees who also say they were victims of age discrimination, even though they worked for other supervisors.

The employee, Ellen Mendelsohn, argued that such evidence is critical to establishing a culture of discrimination.

"Is it fair to an employer that somebody can call co-workers to testify, even though they had nothing to do with the plaintiff or her boss?" said Wall. "To sum it up from a management attorney's perspective, it's a very dangerous case because you can see how that applies no matter the form of discrimination."

A third case tests whether a retirement plan can treat disabled employees of different ages but similar tenures differently.

Kentucky's public retirement system prohibits employees who become disabled and are eligible for retirement from collecting disability retirement benefits, which can be more generous than regular pensions. The state says those employees are entitled only to their regular pensions.

By contrast, an employee who becomes disabled before he is eligible for retirement will receive a disability pension.

A former employee, backed by the EEOC, says the older worker often will receive lower benefits, sometimes dramatically so, in violation of the age discrimination law.

Decisions in all the cases are expected by late June.

As baby boomers get older, an increase in age discrimination suits seems likely, said David B. Ritter, a partner at the Neal Gerber & Eisenberg law firm in Chicago.

"Telling these folks they're too old or having them thinking that their younger boss thinks they're too old, they're not going to go quietly into the night," Ritter said.

Cohen, the AARP executive, said his group's research suggests that some people wish to continue working because they believe it will help them stay healthy.

Some workers also cling to their jobs because they need the health insurance, if not the paycheck. "They are mostly there out of necessity," Cohen said.



Refco Ex-CEO Pleads Guilty to 20 Counts
Lawyer Blog News | 2008/02/16 20:59

Refco's former chairman and chief executive, Phillip R. Bennett, pleaded guilty to fraud, conspiracy and money laundering, among other charges, in a scheme that cost investors at least $2.4 billion.

Bennett's plea yesterday came a month before he was scheduled to go on trial in New York on charges of deceiving banks, auditors and investors, including the buyout firm Thomas H. Lee Partners, during an eight-year accounting fraud.

Two colleagues, former Refco finance chief Robert C. Trosten and former president Tone Grant, still face a March 17 trial.

Under federal sentencing guidelines, Bennett faces life imprisonment with a maximum penalty of 315 years covering all 20 counts as well as forfeiture of $2.4 billion, prosecutors said.

Bennett, whose lawyer said he has $20 million in assets, is scheduled to be sentenced May 20.

After increasing bail, the judge rejected a request by prosecutors to take Bennett into custody immediately.

"I take full responsibility for my conduct," Bennett, 59, told U.S. District Judge Naomi R. Buchwald in Manhattan federal court. "I wish to publicly apologize to my family and to all those I've harmed."

Refco, once the biggest independent U.S. futures trader, collapsed in October 2005, two months after its initial public offering.

The New York firm, which also provided brokerage services, filed for bankruptcy protection days after disclosing that a Bennett-controlled firm owed hundreds of millions of dollars to Refco.


The roots of the case stretch back to 1997, when Refco began hiding massive losses sustained by clients in the Asian debt crisis.

According to the indictment, the company hid the scam from Thomas H. Lee, which paid $507 million for a 57 percent stake in Refco in 2004; from banks and debt holders that extended more than $1.4 billion in financing in 2004; and from investors who paid $583 million for shares when Refco went public.



US Judge Scalia on 'So-Called Torture'
Lawyer Blog News | 2008/02/13 16:29
Conservative U.S. Supreme Court Justice Antonin Scalia said on Tuesday some physical interrogation techniques can be used on a suspect in the event of an imminent threat, such as a hidden bomb about to blow up. In such cases, "smacking someone in the face" could be justified, the outspoken Scalia told the BBC. "You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good.'"

His comments come amid a growing debate about the Bush administration's use of aggressive interrogation methods on terrorism suspects rights after the Sept. 11 attacks, including the use of a widely condemned interrogation technique known as waterboarding.

Scalia said that it was "extraordinary" to assume that the U.S. Constitution's ban on "cruel and unusual punishment" also applied to "so-called" torture.

"To begin with the Constitution ... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime," he said in an interview with the Law in Action program on BBC Radio 4.

Scalia said stronger measures could be taken when a witness refused to answer questions.

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?" he asked.

"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game" Scalia said. "How close does the threat have to be? And how severe can the infliction of pain be?"

Scalia, who has long supported capital punishment, also ridiculed European criticism of the death penalty in the United States.

"If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today," he said.

"There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous," he said.


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