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.


Circuit Applies New Test for Declaratory Judgment
Areas of Focus | 2008/04/01 16:26

The Federal Circuit Court of Appeals recently reversed a district court’s dismissal of a declaratory judgment action, relying on the Supreme Court’s decision in MedImmune Inc. v. Genentech Inc., 127 S.Ct. 764 (2007). See Micron Technology, Inc. v. MOSAID Technologies, Inc., 2008 WL 540182 (Feb. 29, 2008)

Micron was one of the four largest manufacturers of dynamic random access memory (DRAM) chips. Micron, together with Samsung Electronics Company, Ltd, Hynix Semiconductor, Inc., and Infineon Technologies of North America, controlled seventy-five percent of the worldwide market for these chips.

MOSAID held patents on the circuit technology that was used in the manufacture of DRAM chips. In 2001 and 2002, MOSAID sent a series of four letters to Micron inviting Micron to license MOSAID’s patents.

After sending letters to all four of the manufacturers who declined to enter into licenses with MOSAID, MOSAID began patent infringement litigation against each of the manufacturers. MOSAID first sued Samsung. Infineon then sued MOSAID for declaratory judgment of noninfringement. MOSAID and Samsung settled. MOSAID then sued Hynix, who later settled. MOSAID then settled with Infineon. In each settlement, MOSAID granted the manufacturer a license under its patents. MOSAID made statements in public and in its 2005 annual report that it intended to “aggressively” pursue all other DRAM manufacturers to force them to license MOSAID’s technology, and that it would be “unrelenting” in its litigation strategy. The industry believed that Micron was the next target of MOSAID.       

In July 2005, Micron filed a declaratory judgment in the Northern District of California seeking a declaration of noninfringement of 14 patents owned by MOSAID. The following day, MOSAID sued Micron and two other defendants, in the Eastern District of Texas, for infringing seven patents.  MOSAID later added one more defendant and three more patents to the Texas action.            

MOSAID then moved to dismiss the California action for lack of subject matter jurisdiction. The district court granted MOSAID’s motion on the grounds that Micron had no reasonable apprehension of being sued by MOSAID. The district court found that there was no evidence of threats from MOSAID to Micron for the last four years, no threats from MOSAID to Micron’s customers, and no public statements by MOSAID that it intented to sue Micron.           

Micron appealed and the Federal Circuit reversed.           

The court first held that the district court in California did have subject matter jurisdiction over the case. The district court had applied the wrong test – the “reasonable apprehension” test is not the proper test, according to the Supreme Court in MedImmune. The correct test, which the appellate court repeatedly stated “is more lenient,” is “whether the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Micron, quoting MedImmune, 127 S.Ct. at 771.            

In applying this test, a district court must look at the evidence of all of the circumstances. In this case, the evidence included the series of letters from MOSAID to Micron, the previous suits from MOSAID against the other three manufacturers, and MOSAID’s public statements of its intent to aggressively pursue litigation against the remaining manufacturers.         



Icahn Plans More Legal Action Against Motorola
Areas of Focus | 2008/03/24 20:07

Carl Icahn and his affiliates on Monday said it is filing a lawsuit in the Court of Chancery of the State of Delaware seeking a court order requiring Motorola to make certain materials demanded by Icahn from Motorola available for inspection.

The materials that Icahn is seeking include are any board and committee minutes and documents relating to the service and selection of Motorola's senior officers, the prospects or strategy of Motorola's Mobile Devices business and the realignment of its business regarding Mobile Devices, including the potential spinoff of the Mobile Devices business.

Icahn also seeks to include documents, if any, provided to Motorola's Board of Directors regarding matters disclosed in certain of Motorola's press releases and conference calls concerning the performance of Motorola and documents showing the use of Motorola's aircraft and other property by members of senior management, the board of directors and their families.

In addition, Carl Icahn and his affiliates released a letter to stockholders of Motorola, Inc., requesting stockholders to elect Frank Biondi, William Hambrecht, Lionel Kimerling and Keith Meister as directors of Motorola at the 2008 annual meeting of stockholders of Motorola.



2 Held in Millionaire Developer's Death
Areas of Focus | 2008/03/23 22:27
A chauffeur and his cousin are being charged in the 2006 stabbing death of a millionaire developer accused of real estate fraud, police said Saturday.

Andrew Kissel, 46, was found tied up and stabbed to death in his Greenwich mansion just days before he was to plead guilty in a multimillion-dollar fraud case.

Carlos Trujillo, who was Kissel's driver, and his cousin, Leonard Trujillo, have been arrested in connection with the developer's death, Greenwich Police Chief David Ridberg said Saturday.

"There is still a lot of information to be gathered and facts to be discerned," Ridberg said in a written statement announcing the arrests.

The arrest warrants are sealed. The chief said more information would be released Monday.

Leonard Trujillo, 21, is charged with murder and conspiracy to commit murder, police said. Carlos Trujillo, 47, is charged with conspiracy to commit murder.

Attorney Lindy Urso, who represented Carlos Trujillo shortly after Kissel's death could not be reached late Saturday. Information was not immediately available on whether Leonard Trujillo had an attorney.



Doubt Arises over Breathalyzer Source Code
Areas of Focus | 2008/03/21 20:22
An attorney for a Minnesota man accused of drunken driving says he doesn't think the manufacturer of a breathalyzer will meet a court-imposed deadline of August 17 to turn over its source code. If that happens, his client could go free.

The Minnesota Supreme Court ruled late last month that source code for the Intoxilyzer 5000EN, made by a Kentucky-based company called CMI, must be handed to defense attorneys for use in a case involving charges of third-degree DUI against a man named Dale Lee Underdahl.

In this case, the high court concluded that language in the contract between CMI and the state indicates the source code belongs by extension to Minnesota, rejecting the state public safety commissioner's earlier argument that the state was not entitled to the code because of its confidential, copyrighted and proprietary nature. The decision effectively means it's now up to the state to do what it takes to enforce that contract--including suing the company, if necessary.

But as for when the code would be turned over, "I guess the answer is probably never," attorney Jeffrey Sheridan said in a telephone interview Friday. That's because state officials, he added, "haven't given me any indication that the manufacturer has changed its mind."

It remains unclear what steps Minnesota officials plan to take, as representatives did not immediately respond to requests for comment. CMI also did not return calls for comment on Friday.



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