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Judge says Parmalat fraud suit can proceed
Areas of Focus | 2008/04/16 16:03

A New Jersey Superior Court judge ruled Tuesday that a $7 billion lawsuit filed by Italian dairy giant Parmalat SpA against Citigroup could go forward on a claim that Citigroup aided and abetted former Parmalat executives in misappropriating company money. Parmalat has alleged that Citigroup helped obscure the state of Parmalat's finances and helped to move the ill-gotten gains of former Parmalat executives through its bank accounts. Judge Jonathan N. Harris dismissed several of Parmalat's claims, including fraud claims brought under New Jersey's Uniform Fraudulent Transfer Act and racketeering claims brought under the state's Racketeer Influenced and Corrupt Organizations Act. The trial is scheduled for May 5.

Citigroup was among four banking giants indicted by an Italian judge in June 2007 for not revealing to the market that Parmalat was not financially healthy. Parmalat filed for insolvency in December 2003 after discovering accounting discrepancies totaling nearly $5 billion in debt.



Court Steps Into Utilities Case
Areas of Focus | 2008/04/15 15:43
The Supreme Court on Monday agreed to hear an environmental case in which utility companies want to revive an industry-friendly regulation put in place by the Bush administration.

The dispute with environmental groups revolves around the harm companies cause when they draw water from rivers and lakes to cool electric generating equipment, then return it to the waterway. The process kills aquatic life.

The Environmental Protection Agency allowed the industry to forgo the most expensive solution, installing closed-cycle cooling systems which would cost billions of dollars at 550 generating units around the country including 104 nuclear power plants. The units account for 40 percent of the country's energy production.

The EPA rule allowed the companies to decide how to comply with the Clean Water Act by conducting cost-benefit analyses of the available options.

The 2nd U.S. Circuit Court of Appeals in New York City ruled against the companies, saying they must adopt the best technology available.

The appeals court called into question EPA's conclusion that closed-cycle cooling costs could not be reasonably borne by the industry.

Last month, the Bush administration said in a court filing that it would support the industry position were the case to come before the Supreme Court.

With a new administration taking office next January, an EPA run by different presidential appointees might choose to change positions on the issue.

Robert Goldstein, general counsel at Riverkeeper Inc., one of the environmental groups involved in the dispute, said "it's about time this law enacted in 1972 get some teeth."


Class Action Cites Zetia & Vytorin
Areas of Focus | 2008/04/11 15:53
In a shareholder's class action that neatly summarizes complaints about Schering-Plough Corp.'s sales of its cholesterol drugs Zetia and Vytorin, the Arkansas Teacher Retirement System claims: "Sixteen months after completion of a study showing that its two most profitable drugs had no greater health benefit than far cheaper generic competitors - and may even be harmful - Schering sold over $4 billion of its own securities to the investing without disclosing the results of the study. This lack of disclosure violated the securities laws."

    The complaint continues: "It took the Company another five months to disclose some of the study results and when it did, Schering's stock dropped precipitously and investors were harmed. Ten weeks after that initial disclosure, Schering disclosed the study results in their entirety, which caused the stock to drop even further.

    "Defendant Schering manufactures and markets two anti-cholesterol drugs called Zetia and Vytorin. Vytorin is a combination of Zetia and Zocor - in generic form, simvastatin - and is jointly manufactured and marketed with Merck & Co., Inc. Total sales of Zetia and Vytorin were $3.9 billion in 2006 and $5.2 billion in 2007. These drugs are Schering's most profitable, accounting for 70 percent of its profits, by one estimate."

    This is not the first such class action against Schering-Plough. Courthouse News reports it because its first six pages contain a clear and concise summary of the allegations, and the history of the medical trials that Schering allegedly failed to disclose.

    Plaintiffs are represented by James Cecchi with Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein of Roseland, N.J.


Fed Appeals Court Dismisses Free Speech Case
Legal Topics | 2008/04/10 16:30

The US Court of Appeals for the Sixth Circuit Wednesday dismissed a lawsuit brought by Kentucky high school student Timothy Morrison against the Boyd County Board of Education over a 2004 policy that banned Morrison and other students from expressing their opposition to homosexuality. Judge Deborah L. Cook, in a 2-1 ruling, said that Morrison failed to show he had been harmed by the policy prior to the school district repealing the policy and also that winning the lawsuit, which sought $1 in damages, would not rectify the issue. Morrison sued the school district over a now-repealed policy that required students to undergo anti-harassment training. The school district changed the policy to exempt speech that would ordinarily be protected under the First Amendment. Wednesday's ruling reverses an earlier decision by the same Sixth Circuit panel allowing the case to proceed.

In another student free speech case, the US Supreme Court held last year in Morse v. Frederick that public schools do not violate the First Amendment rights of students by sanctioning them for speech during a school-sanctioned activity that may be reasonably interpreted to promote the use of illegal substances. A high school student was suspended after he displayed a banner with the message "Bong hits 4 Jesus" during a televised parade on a school day. The student subsequently sued his principal, arguing that the principal unreasonably restricted his right to free speech.



Scalia to Go Before the News Cameras
Legal Topics | 2008/04/09 15:52
Supreme Court Justice Antonin Scalia, who makes no secret of his disdain for the news media, has agreed to appear in a segment of CBS News' "60 Minutes" on April 27, the eve of the publication date for a new book he has co-authored.

A knowledgeable source who requested anonymity confirmed Monday that the top-rated newsmagazine asked Scalia for the interview and he accepted, in spite of his oft-stated view that judges should stand apart from the modern media culture.

Correspondent Lesley Stahl has already conducted several taped interviews with Scalia that range well beyond his book -- called "Making Your Case: The Art of Persuading Judges" -- and delve into his career and upbringing.

In the life of the Court and the career of Justice Scalia, this is a remarkable, Nixon-goes-to-China moment. No justice has excoriated the news media like Scalia has, and it would have surprised no one if he had completed his tenure on the high court without ever consenting to a broadcast interview.

Earlier in his tenure, when he gave a speech at a law school and an unsuspecting local television news crew showed up, Scalia would impetuously refuse to go on stage until the cameras left. In what has become known as the "Hattiesburg Incident" of 2004, deputy U.S. marshals ordered reporters to erase audiotape recordings of a speech Scalia was giving in Mississippi. The marshals believed they were enforcing Scalia's anti-press policies. Scalia apologized, and said his policies had been misunderstood.

But when the reporters lodged protests with the marshal's service, an internal investigation ensued. In a deposition taken during the investigation and later released under the Freedom of Information Act, one of the marshals quoted Scalia as saying, earlier in the day, "I hate the media, don't like the media, I don't know why they're here. I'm not talking to them." That same day,according to another deposition, when the question of talking to local media came up, a reporter overheard Scalia saying, "I don't do interviews. I don't talk to the press."

The "60 Minutes" appearance is the centerpiece of a limited round of publicity Scalia will be doing to promote sales of the book he wrote with Bryan Garner. Garner is the legal writing expert whose company LawProse Inc. runs seminars for law firms around the country. The two decided to write the book after Garner interviewed Scalia and seven other justices about legal writing and advocacy last year. Those tapes are available on Garner's Web site. C-SPAN announced Monday that Scalia would appear in a live exchange with high school students today on C-SPAN3.

Scalia is not the first justice to appear on television to launch a book, by any means; just last year Justice Clarence Thomas' memoir, "My Grandfather's Son," was published the day after a "60 Minutes" appearance. Current and former Justices Sandra Day O'Connor, Stephen Breyer and William Rehnquist have also done televised interviews to publicize their works.

But for Scalia to join the trend after decades of disdaining this kind of attention is remarkable. He may have felt encouraged in a general sense by the lighter and more open leadership of the Court by Chief Justice John Roberts Jr., which contrasts sharply with the cloistered style of Rehnquist, Roberts' predecessor. The 72-year-old Scalia may also have felt that at this stage in his life, the time has come to unburden himself and tell his story on a stage broader than the Supreme Court.


Chemical Co. Settles Lawsuit for $1.8 Billion
Legal Topics | 2008/04/09 15:43
W.R.Grace, a specialty chemical company that operated plants inMassachusetts and Montana, agreed to a settlement yesterday forasbestos claims brought against the company in a class action lawsuit.

More than 100,000 claims have been brought against W.R.Grace by individuals who claimed to have been injured by exposure toasbestos. Pending approval by U.S. Bankruptcy Judge Judith Fitzgerald,the settlement would allow W.R. Grace to make steps towards moving outof bankruptcy, which the company filed for in 2001, and startcompensating the plaintiffs in the lawsuit.

If the settlement is allowed, the company would immediately deposit$250 million into a trust for victims. Starting in 2019, the companywould contribute an additional $110 million to the trust for fivesuccessive years followed by ten annual payments of $100 million. Theagreement would also make public 10 million shares of W.R. Grace stockthat plaintiffs would be able to purchase for $17 a share for up to oneyear after the company’s reorganization.



Eyes on Supreme Court in Execution Case Tuesday
Legal Topics | 2008/04/08 16:36
By 6 p.m. Tuesday, when a Mississippi inmate is scheduled to die by lethal injection, the Supreme Court may give the clearest indication so far of whether it intends to call a halt to all such executions while a case from Kentucky that the justices accepted last month remains undecided.

The Mississippi inmate, Earl W. Berry, convicted of kidnapping and murder in 1988, has been turned down by the Mississippi Supreme Court and by the United States Court of Appeals for the Fifth Circuit. Late on Monday, the justices denied his appeal of the state court ruling, as well as the application for a stay of execution that accompanied it.

Mr. Berry’s application for a stay of the Fifth Circuit ruling, which his lawyers filed on Monday afternoon, remained pending in the evening, having come in very late in the afternoon.

In turning down the state-court appeal without any apparent dissent, the Supreme Court’s three-sentence order provided a brief explanation. The Supreme Court had no jurisdiction, the unsigned order said, because “the judgment of the Mississippi Supreme Court relies upon an adequate and independent state ground.”

The Mississippi Supreme Court ruled on Oct. 11 that Mr. Berry’s challenge to the lethal injection procedure was barred as a matter of state law because he had not presented the claim in his earlier appeals. The United States Supreme Court’s own jurisdiction is limited to deciding independent questions of federal law.

The Fifth Circuit, which sits in New Orleans, similarly dismissed Mr. Berry’s challenge to lethal injection as untimely, in a decision issued on Friday. By contrast, that decision clearly presents an issue of federal procedural law for the Supreme Court to address, whether a challenge to an execution method on the eve of a scheduled execution must be dismissed as untimely. As to whether all pending executions should now be delayed, the appeals court all but challenged the justices to state plainly whether that was the case.

Noting that Mr. Berry’s new federal-court case challenging lethal injection was not filed until Oct. 18, the appeals court said: “Well-established Fifth Circuit precedent is clear: death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state’s method of carrying it out.”

That precedent “remains binding until the Supreme Court provides contrary guidance,” the appeals court said.

In the five weeks since the Supreme Court agreed to examine how courts should evaluate the constitutionality of lethal injection, in a case from Kentucky, Baze v. Rees, No. 07-5439, the national picture has become increasingly confused. The justices allowed one execution to proceed and granted stays in two others.


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