Common Law - The FindLaw Consumer Protection Law Blog

May 2008 Archives

N.Y. to Recognize Same-Sex Marriages

The state of New York will recognize same-sex marriages and unions that are formed and legally validated in other jurisdictions, under an order issued by New York Governor David Paterson.

According to CNN.com, Governor Paterson's legal counsel has instructed state agencies to revise their policies "to recognize same-sex marriages performed in California and Massachusetts as well as Canada and other countries that allow gays and lesbians to marry." The New York Times calls the move "the strongest signal yet" that Governor Paterson intends to push for the legalization of same-sex marriage in New York.

In California, where the California Supreme Court rejected the state's same-sex marriage ban, state officials announced that -- barring any contrary legal developments -- marriage licenses for same-sex couples may be issued beginning on June 17, 2008 (30 days after the court's ruling).

Supreme Court OKs Employees' Retaliation Claims

In two decisions handed down on Tuesday, the U.S. Supreme Court sided with the rights of employees who complain of job bias and are later subjected to retaliatory action by their employers.

In CBOCS West, Inc. v. Humphries, a former Cracker Barrel assistant manager claimed that the restaurant dismissed him because he is African-American, and because he complained to managers that an African-American co-worker was also fired for race-based reasons. The Court held that a longstanding federal civil rights law -- first enacted just after the Civil War -- "encompasses a complaint of retaliation against a person who has complained about a violation of another person's contract-related right."

In Gomez-Perez v. Potter, a postal worker was subjected to various forms of on-the-job retaliation after claiming that her employer violated federal age discrimination laws. The Court held that relevant provisions of the Age Discrimination in Employment Act of 1967 prohibit employers from retaliating against a federal employee who complains of age discrimination.

New Safety Plan for Drugs and Medical Devices

Federal health agencies have announced a new initiative aimed at improving patient safety and better ensuring the quality of medication and medical devices.

The Sentinel Initiative - A National Strategy for Monitoring Medical Product Safety is described as "a national electronic safety system capable of tracking the performance of a drug or medical product, beginning with the earliest stages of clinical research through its effects on millions of Americans who use it to treat or to recover from an illness or condition." The initiative is a joint effort of the U.S. Department of Health and Human Services (HHS) and the U.S. Food and Drug Administration (FDA). The Washington Post reports that the Sentinel Initiative will allow federal health agencies "to try to identify drug- and device-related problems sooner than does the current system, which relies primarily on voluntary reporting by individual doctors."

'Don't Ask, Don't Tell' Court Challenge Reinstated

A federal appeals court has reinstated an Air Force reservist's challenge to the constitutionality of the U.S. military's "Don't Ask, Don't Tell" policy, ordering the lower court to re-examine the case under a stricter standard of review.

The suit was filed by U.S. Air Force Major Margaret Witt, an Air Force reserve flight nurse stationed at McChord Air Force Base in Washington State. Witt was suspended from duty after a military investigation and hearing concluded that she had declared her homosexuality, in violation of the military's "Don't Ask, Don't Tell" policy. In Wednesday's decision, the U.S. Court of Appeals for the Ninth Circuit held that Witt's "due process" challenges to "Don't Ask, Don't Tell" should be reinstated, and that the case should be examined by the lower court under a higher level of scrutiny. As the New York Times reports, Wednesday's decision is notable because the court ruled that in defending the constitutionality of its action under the "Don't ask, Don't Tell" policy, "the government must go further than simply showing a rational basis for its action, instead proving in each case that an important government interest is at stake and that the intrusion into the plaintiff's private life significantly advanced the interest." 

Court: U.S. Paper Money Discriminates Against Blind

Paper money in the U.S. currency system discriminates against the visually impaired, because all bills are of the same size, feel, and color scheme regardless of denomination, a federal appeals court in the District of Columbia ruled on Tuesday.

The 2-1 decision from the U.S. Court of Appeals for the District of Columbia Circuit held that the U.S. Treasury Department's existing paper currency system amounts to a "denial of meaningful access" under the Rehabilitation Act of 1973, a federal law that protects the rights of the disabled. The court also found that the Treasury Department failed to show that other reasonable, non-discriminatory alternatives to the existing paper currency system would be too burdensome. The Washington Post reports that the Council of the Blind -- the original plaintiff in the case -- ''has suggested distinguishing bills of different amounts by changing their size, adding embossed dots or foil to the paper, or using raised ink."

Supreme Court OKs Child Pornography Law

The U.S. Supreme Court on Monday upheld a federal law which, in part, makes it a crime to promote or advertise child pornography whether or not the material actually exists.

The "pandering and solicitation" provision of the 2003 federal law prohibits the advertisement, promotion, presentation, distribution, or solicitation of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains" child pornography. In Monday's 7-2 decision, the Court held that the federal law is not unconstitutionally overbroad under the First Amendment, and does not criminalize a substantial amount of protected expressive activity.

The Los Angeles Times reports that Monday's decision "gives prosecutors a powerful weapon to go after those who talk about child pornography online," and "appears to take away a defense for those who say the material they were discussing involves computer images, not depictions of real children engaged in sex." Reuters reports that "opponents of the law argued it sweeps too broadly and could be applied to popular award-winning movies like 'Lolita,' 'Traffic,' 'American Beauty' and 'Titanic' that depict adolescent sex," while the government countered that "those movies are not child pornography and would not be targeted by the law."

How much attention do Americans pay to the results of political polls? Do they trust the accuracy of the polls? And do the poll results influence how they vote? A new national survey conducted by FindLaw.com sheds some new light on what Americans think about political opinion polls.

Survey results show that, while Americans trust the results of political polls, they aren't necessarily swayed by them. While sixty-eight percent of Americans believe that political polling is at least somewhat accurate, four in 10 Americans pay little or no attention to opinion polls on the popularity of presidential candidates, and more than eight in 10 say polls do not influence their vote. Those who consider themselves Democratic (or leaning Democratic) are more likely to pay attention to political polls than those who consider themselves Independent or Republican (or leaning Republican). This may be due, at least in part, to the closely contested fight for the Democratic presidential nomination.

All Trasylol Pulled from Market

Trasylol manufacturer Bayer HealthCare Pharmaceuticals Inc. will begin removing any remaining stock of the blood-clotting medication from the U.S. market, after detailed results of a Canada drug study showed an increased risk of death in Trasylol patients.

The U.S. Food and Drug Administration (FDA) reports that most remaining stock of Trasylol (aprotinin) medication is in warehouses and hospital or physician's stock. In November 2007, Bayer announced that it was suspending worldwide sale of the drug until potential health risks could be properly evaluated. This occurred shortly after preliminary findings from the Canada-based drug study of cardiac surgery patients showed that Trasylol use appeared to cause increase health risks compared with other anti-bleeding drugs used in the study -- including risk of kidney failure, stroke, and heart attack.

The California Supreme Court today ruled that the state's failure to designate the official relationship of same-sex couples as marriage violates the California Constitution, effectively rejecting the state's ban on same-sex marriage.

In today's 4-3 decision -- a consolidation of six different appeals -- the court concluded that the "domestic partnership" designation is not sufficient, and that "to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional." The decision comes more than four years after the city of San Francisco issued about 4,000 marriage licenses to same-sex couples, a move the state's high court halted before declaring that San Francisco Mayor Gavin Newsom could not sidestep state marriage laws. The validity of California's marriage laws -- specifically, the constitutionality of limiting the definition of marriage to a union between a man and a woman -- was the subject of a number of lower court decisions before today's ruling by the California Supreme Court.

FBI: Mortgage Fraud on the Rise

Mortgage fraud is on the rise in the U.S., with the Federal Bureau of Investigation (FBI) receiving more than 46,000 "Suspicious Activity Reports" involving mortgage fraud in 2007 -- compared to 35,617 reports in 2006, and 6,936 in 2003.

The FBI's 2007 Mortgage Fraud Report contains detailed information on data and trends related to mortgage fraud, which can include false appraisal scams, foreclosure rescue fraud, "builder-bailout" schemes, and identity thefts in which home equity credit lines are opened and drained. The FBI expects current downward trends in the housing market to give "further incentive for shady real estate industry insiders to look for dishonest ways to turn a profit and growing opportunities for scam artists to prey on vulnerable homeowners." The FBI's warnings on mortgage fraud come as U.S. home foreclosures reach record highs, according to the Wall Street Journal.

Autism-Vaccine Hearings in Federal Court

A federal court this week is examining claims of a possible link between certain childhood vaccinations and the development of autism and similar neurodevelopmental disorders in children.

The hearings, which began on Monday, are part of the Omnibus Autism Proceeding, in which the U.S. Court of Federal Claims is considering the vaccine-autism claims of the parents of more than 5,000 autistic children. The New York Times reports that this week's hearings are focusing on parents' claims that thimerosal -- a mercury-based preservative that was removed from most childhood vaccines by 2001 -- caused damaged to their children's brains. Reuters reports that, "[a]lthough most medical experts say there is no [autism-vaccine] link, the court can rule there is a plausible association and allow parents of children with autism to get federal compensation from a special vaccine fund."

First Class Stamp Now 42 Cents

The price of a United States Postal Service (USPS) first class postage stamp has increased from 41 to 42 cents, effective today.

Other USPS mailing service costs have also increased as of today, including rates for postcards, certified mail, international letters, and package services. See a Complete List of USPS Prices for Domestic and International Services. The Associated Press reports that consumers may want to stock up on the USPS "Forever Stamp," because although the price of that stamp is now also 42 cents, the USPS is expected to adjust its prices again next May.

The Michigan Supreme Court ruled yesterday that public employers in the state cannot provide health-insurance benefits to their employees' same-sex domestic partners, because the provision of such benefits violates a Michigan Constitution amendment defining marriage and "similar unions."

In a 5-2 decision, the court ruled that the marriage amendment -- which was approved by Michigan voters in November 2004 and took effect one month later -- prohibits same-sex domestic partnerships from being recognized as unions "similar to marriage." The Detroit Free Press reports that "public employers in Michigan who had offered such benefits already had changed their policies to ensure their employees' partners would remain covered. But lawyers and gay rights advocates said the ruling sends a 'devastating' signal about the state's attitude toward gays, lesbians and their children."

Georgia Execution Ends Nationwide Moratorium

The first execution in the U.S. in more than seven months was carried out in Georgia last night, less than a month after the U.S. Supreme Court upheld the constitutionality of lethal injection.

Convicted killer William Earl Lynd was executed by lethal injection at a prison facility in Jackson, Georgia, after appeals to the Georgia Supreme Court and U.S. Supreme Court were refused. The execution was the first since the U.S. Supreme Court handed down a highly anticipated decision on April 16, ruling that Kentucky's lethal injection protocol -- involving the administration of three drugs -- does not violate Eighth Amendment protections against cruel and unusual punishment. The Washington Post reports that a "de facto moratorium" on executions had been in place since last September (when the high court decided to assess the constitutionality of lethal injection) but now more states are expected to lift their capital punishment moratoriums -- with Texas setting dates for six executions this summer, and Virginia scheduling three.

286,000 Pounds of Meat Products Recalled

Over 286,000 pounds of meat and chicken products have been voluntarily recalled by a New York food company, after testing revealed possible Listeria monocytogenes contamination.

The recalled products -- including fresh chicken salads, frozen burritos, and wrap sandwiches -- were produced and distributed nationwide to food service and retail stores by Gourmet Boutique, L.L.C., a company based in Jamaica, Queens in New York City. See a complete list of recalled products in a press release from the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS). Potential contamination was discovered through sample testing of the products by FSIS and a Florida agency, although FSIS has received no reports of illnesses associated with any of the recalled Gourmet Boutique products. Eating food contaminated with the bacterium Listeria monocytogenes can cause a serious infection called listeriosis, which primarily affects pregnant women, newborns, and adults with weakened immune systems.

Fed Proposes New Credit Card Rules

The Federal Reserve Board has approved a plan that would protect consumers from the unfair billing practices of credit card companies and banks.

Among the reform measures announced by the Fed on Friday, consumers would be protected from unexpected interest rate increases on pre-existing credit card balances, credit card companies would need to allow for 21 days between the mailing of statements and the payment due date, and institutions would be prohibited from using payment allocation methods that maximize interest accrual. Reuters reports that the Federal Reserve Board -- along with the U.S. Office of Thrift Supervision and the National Credit Union Administration -- hope to have a final rule in place by the end of 2008.

$38M Settlement for Minn. Bridge Victims

Minnesota lawmakers have okayed a compensation agreement in connection with last summer's Minneapolis bridge collapse, including a $38M settlement fund for victims and their families.

On August 1, 2007, an Interstate 35W bridge collapsed over the Mississippi River in Minneapolis, killing 13 people and injuring dozens. According to the Minneapolis Star Tribune, the legislation sets up two funds for the 183 victims of the collapse: one $24M fund for victims and their families -- capped at $400,000 per individual -- and a supplemental $12.64M fund for damages above $400,000 for those "extraordinarily impacted" by the collapse. The Minnesota legislature gave final approval to the agreement on May 5th. CNN.com reports that a National Transportation Safety Board (NTSB) investigation into the cause of the bridge collapse is ongoing.

"State of the Air" Pollution Report Released

The American Lung Association has released its 2008 "State of the Air" report, a city-by-city report card on air quality and pollution across the U.S.

The ALA's 2008 "State of the Air" report ranks cities according to prevalence of three types of air pollution: short-term particles, year-round particles, and ozone. For the first time, a city outside of California has topped one of the three ranking lists. Pittsburgh, Pennsylvania ranked worst in terms of short-term particle pollution, which an ALA Press Release describes as "a deadly cocktail of ash, soot, diesel exhaust, chemicals, metals and aerosols that can spike dangerously for hours to weeks on end." The Associated Press reports that the eight metro areas with the worst air pollution were Los Angeles (CA), Bakersfield (CA), Fresno (CA), Visalia-Porterfield (CA), Hanford-Corcoran (CA), Washington D.C.-Baltimore, St. Louis (MO), and Birmingham (AL).