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Vonage Wins Temporary Reprieve in Verizon Case
Lawyer Blog News | 2007/04/09 16:54

Vonage won a temporary reprieve from an appeals court on Friday, hours after a lower court barred it from adding new customers while it appeals a finding it infringed Verizon Communications Inc. patents for making phone calls over the Internet.
"We just learned, just now, from our legal counsel that we secured a temporary stay until the appeals court can hear our request for a permanent stay of that order," said Vonage Holdings Corp. spokeswoman Brooke Schulz.

U.S. District Judge Claude Hilton had limited Vonage to serving its existing customers. He also required Vonage to post a $66 million bond.

The stay is good until the U.S. Court of Appeals for the Federal Circuit hears Vonage's request for a permanent stay of Hilton's injunction.

However, it does not mean that Vonage will necessarily be able to continue its business as usual for the length of the appeals process.

An industry analyst, who said Vonage's business would face problems if the company could not add new customers while appealing the case, said the temporary stay was "unnecessary technically," as Hilton was not expected to enter his ruling until Thursday, April 12.

Benzene Case Taken to U.S. Supreme Court
Lawyer Blog News | 2007/04/08 16:11

A lawyer urges the U.S. Supreme Court to reverse the state Supreme Court ruling that barred her Alabama client from suing the manufacturers of a chemical he blamed for causing his rare form of leukemia. Jack Cline died in January of acute myelogenous leukemia. Until retiring in 1995, he worked with benzene for 37 years for a company that made railroad wheels.

Cline tried to sue Ashland Inc., Chevron Phillips Chemical, and ExxonMobil Corp., which produced the benzene he believed caused his disease. The judge presiding over the case ruled in favor of the defendants, stating that Cline waited too long to sue.

The judge’s ruling was based on a 1979 precedent that held that the two-year statute of limitations begins on the date of the last incidence of chemical exposure.

In Alabama, another precedent allows lawsuits only by persons who can show “manifest harm” or demonstrable injury. But because Cline’s illness was not diagnosed until 1999—four years after his last exposure—there was no allowable time period during which he could have sued, according to both precedents.

Cline’s lawyer, Leslie Brueckner, is arguing that the state ruling violated the 14th amendment, denying Cline due process of law.

If the U.S. Supreme Court accepts the case, oral arguments should begin sometime in the fall or winter.

Justice Department Aide Monica Goodling Resigns
Lawyer Blog News | 2007/04/07 18:07

Monica M. Goodling, one of the key aides who took part in planning the firings of eight US Attorneys who was formerly on voluntary leave from her post as special counsel to the US Attorney General, submitted her resignation without cause Friday. Goodling's resignation, effective Saturday, is the third by a Department of Justice official involved in the controversy. On Tuesday, Goodling told the House Judiciary Committee that she would not speak to the committee about her role in the firings, and stated through her lawyer, John Dowd, that she would seek protection under the Fifth Amendment if the committee issued her a subpoena.

Documents and records released by the DOJ in late March show that Goodling participated in multiple meetings planning the firings over a period of 12 months. Goodling was also involved in a April 6, 2006 telephone conversation with Sen. Pete Domenici (R-NM). Domenici had complained to the Bush administration concerning the speed of former Albuquerque US Attorney David Iglesias' investigation of local Democrats before the November 2006 elections. Dowd characterized any questioning of his client a "perjury trap" while citing the recent conviction of Lewis Libby in the CIA leak case.

On Monday, Sen. Patrick Leahy (D-VT), chair of the US Senate Judiciary Committee, rejected attempts by the Bush administration to move up the date that US Attorney General Alberto Gonzales is scheduled to testify. In March, Kyle Sampson, former chief of staff to Gonzales, who had resigned, told the Senate Judiciary Committee that the prosecutors were fired for political reasons rather than for poor performance as the Justice Department has claimed.

Suspect in Home Depot slaying pleads not guilty
Lawyer Blog News | 2007/04/06 22:25

Jason Russell Richardson pleaded not guilty Friday to shooting and killing Tom Egan, a night manager at the Tustin Marketplace Home Depot, while robbing the store Feb. 9.

In a court appearance that lasted just seconds, Richardson, a convicted rapist who had been out on parole for spousal abuse, stood shackled and chained as he entered his plea through his attorney, Hector M. Chaparro of the county's Associate Defender's Office.

"That's good," Richardson, 36, said when Orange County Superior Court Judge Kazuharu Makino asked Richardson if June 11 would work for a preliminary hearing – when a judge decides if prosecutors have enough evidence to take their case to trial. Richardson could get the death penalty if convicted.

Egan, a 40-year-old father of twin girls, was shot once in the abdomen when he tried to stop a man dressed in painter coveralls, dust mask and yellow construction helmet from robbing his store. Egan, who stayed on hours after his shift had ended, begged the man to leave the store and not to hurt anyone, police said.

Egan pleaded with the man to leave as he grabbed wads of cash from the register. The heavily disguised man turned and shot him once. Surveillance tape shows the shooter stepping over Egan's body as he walked out of the store. He got away with about $500.

Egan died a short time later at a hospital.

A massive manhunt was on for the shooter. Less than two weeks later, Tustin police arrested Richardson, 36, in Oceanside when he went to check in with his parole officer. Digitally enhanced surveillance video led investigators to a dirty sock dropped inside the Home Depot. Forensic scientists matched DNA from the sock to a DNA sample Richardson was forced to give after his 1992 rape conviction.

At a Feb. 23 news conference announcing Richardson's arrest, Tustin police said Richardson had been convicted of sexual assault on a child. In fact, Richardson pleaded guilty to burglary, rape and forced oral copulation and was sentenced to six years in prison. In 2002, he was sentenced to four years for spousal abuse.

Judge blocks Vonage from adding new customers
Lawyer Blog News | 2007/04/06 19:15

Vonage Holdings Corp. cannot add new customers while it appeals a finding that it infringed Verizon Communications Inc. patents for making phone calls over the Internet, a federal judge ruled on Friday. Vonage plans to appeal U.S. District Judge Claude Hilton's order that allows Vonage to only provide service to existing customers. Vonage is also required to post a $66 million bond.

Hilton said Vonage could be irreparably injured if he completely barred its use of Verizon technology. "Some question whether they could stay in business," he said.

However, the judge said Verizon would be injured if Vonage was completely free to continue infringing the patents.

A lawyer for Vonage, Roger Warin, told the court the ruling was a "slow strangling" of the company. The difference between a partial stay or a total prohibition on using the technology amounted to "cutting off oxygen or a bullet to the head," he said.

Hilton is expected to sign his order next Thursday. Vonage is then free to take the case to the U.S. Court of Appeals for the Federal Circuit, which specializes in patent cases.

U.S. equities markets were closed for the Good Friday holiday. Vonage shares closed down almost 7 percent on Thursday to $3.37 on the New York Stock Exchange ahead of the court hearing. Verizon shares rose 1 percent to $38 on the NYSE.

Rebecca Arbogast, an analyst with Stifel Nicolaus, said Hilton's order was a blow to Vonage. "If they can't get new customers (while they appeal the case), I think it's going to be tough to attract capital."

Hilton announced on March 23 that he intended to issue an injunction blocking all use of Verizon's technology, sending Vonage shares down nearly 26 percent that day.

The judge gave Vonage two weeks to try to convince him to stay the injunction. Verizon then suggested the judge allow Vonage to keep servicing its existing customers if a stay was necessary.

Earlier in March, a jury found Vonage had infringed three patents owned by Verizon. The jury said Vonage must pay $58 million, plus 5.5 percent royalties on future sales.

Vonage stock has steadily lost value since its initial public offering at $17 a share in May last year. The shares posted an all-time closing low of $3 after Hilton's March 23 hearing.

Cemex approval paves way for next Rinker move
Lawyer Blog News | 2007/04/06 01:27

The Department of Justice announced today that it has reached a settlement that will require Mexico-based Cemex S.A.B. de C.V. to divest 39 ready mix concrete, concrete block, and aggregate facilities in Arizona and Florida in the event Cemex succeeds in its hostile takeover of Australia-based Rinker Group. The Department said that without the divestitures the proposed acquisition would substantially lessen competition for ready mix concrete in certain metropolitan areas in Arizona and Florida, as well as result in increased prices for ready mix concrete, concrete block, and aggregate sold to customers handling state Department of Transportation and large building projects. The total value of the Cemex/Rinker transaction, including Rinker's debt, is approximately $12 billion.

The Department's Antitrust Division filed a civil antitrust lawsuit today in U.S. District Court in Washington, D.C. to block the proposed transaction. At the same time, the Department filed a proposed consent decree that, if approved by the court, would resolve the lawsuit and the Department's competitive concerns.

"Without the divestitures required by the Department, purchasers of ready mix concrete, concrete block and aggregate in these areas of Florida and Arizona, including state departments of transportation, would likely have faced higher prices if the transaction is completed. The Department's action will ensure that these customers will continue to receive the benefits of competition,"said Thomas O. Barnett, Assistant Attorney General for the Department's Antitrust Division.

Ready mix concrete is a building material used in large construction projects including buildings, highways, bridges, tunnels, and other projects. Concrete block is a building material used in the construction of residential and commercial structures. Aggregate is crushed stone and gravel produced at quarries, mines, or gravel pits that is used in, among other things, the production of ready mix concrete, concrete block, and asphalt.

The Department concluded that the deal would have resulted in increased prices for ready mix concrete sold to customers handling state Department of Transportation projects and other large building projects in the metropolitan areas of Fort Walton Beach/Panama City/Pensacola, Jacksonville, Orlando, Tampa/St. Petersburg, and Fort Myers/Naples, Fla., and the areas of Flagstaff and Tucson, Ariz. In Flagstaff, Rinker and Cemex are the only two competitors capable of supplying ready mix concrete for these large projects, and in the other areas in which divestitures are being required there are only one or two firms in addition to Cemex and Rinker that are capable of serving large projects.

The Department also said that the acquisition also would have resulted in an increase in prices for concrete block for a significant number of customers in the metropolitan areas of Tampa/St. Petersburg and Fort Myers/Naples, Fla., where Cemex and Rinker account for more than 60 percent of concrete block sales.

Finally, the Department said that the acquisition would have resulted in increased prices for aggregate to a significant number of customers in the Tucson, Ariz., area where Cemex and Rinker are among a small number of firms capable of supplying aggregates meeting state Department of Transportation specifications.

On Oct. 27, 2006, Cemex announced its intention to acquire Rinker through a hostile cash tender offer. The offer was due to expire on March 30, 2007, but Cemex extended it until April 27, 2007.

Under the terms of the proposed consent decree, once Cemex obtains control of Rinker, Cemex must divest certain ready mix concrete assets to a single buyer in each of the areas of competitive concern. The terms of the proposed consent decree also require the divestiture of all of Rinker's concrete block-related assets in the Tampa/St. Petersburg and Fort Myers/Naples areas. Cemex must divest two aggregate plants in the Tucson, Ariz., area to the same acquirer that purchases the two ready mix plants to be divested at the same locations. Under the consent decree, the Department's Antitrust Division must approve the buyer of all of the divested assets.

Cemex, headquartered in Nuevo León, Mexico, produces and distributes cement, ready mix concrete, aggregate, concrete block, concrete pipe, and related building materials to customers in more than 50 countries. In 2006, Cemex reported total sales of approximately $24.6 billion. Cemex is the largest United States supplier of ready mix concrete and cement and the seventh largest United States supplier of aggregate. Approximately 25 percent of Cemex's revenues are earned in the U.S. Cemex operates in the U.S. through its wholly-owned subsidiary, Cemex Inc., which is headquartered in Houston.

Rinker, headquartered in Chatswood, Australia, produces and distributes aggregate, ready mix concrete, cement, concrete block, asphalt, concrete pipe, and other construction materials through its operations in the U.S. and Australia. In 2006, Rinker reported total sales of approximately $4 billion. Rinker is the second largest U.S. supplier of ready mix concrete and the fifth largest U.S. supplier of aggregate. Approximately 80 percent of Rinker's revenues are earned in the U.S. Rinker operates in the U.S. through its subsidiary, Rinker Materials Corporation, which is headquartered in West Palm Beach, Fla.

As required by the Tunney Act, the proposed consent decree, along with the Department's competitive impact statement, will be published in the Federal Register. Any person may submit written comments concerning the proposed decree during a 60-day comment period to Maribeth Petrizzi, Chief, Litigation II Section, Antitrust Division, U.S. Department of Justice, 1401 H Street, N.W., Suite 3000, Washington, D.C. 20530. At the conclusion of the 60-day comment period, the court may enter the final judgment upon a finding that it serves the public interest.

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