Common Law - The FindLaw Consumer Protection Law Blog

June 2008 Archives

FindLaw Survey: Most Americans Don't Have a Will

Nearly 60 percent of Americans don't have a will, giving them little control or input into important issues like what will happen to their assets and their minor children after they die, according to a new survey by FindLaw.com.

A will is a basic component of estate planning. Among other things, it specifies how your assets will be distributed after you pass away, and who will receive them. Without a will, the laws of the state and the decisions of a probate court may determine how your estate is distributed, who will care for your children if they are minors, and so forth. FindLaw's survey found that people are more likely to have a will as they get older. More than half of Americans age 50 and older have a will. But the numbers steadily drop among younger adults. Only about a quarter of people between the ages of 25 and 34 have a will. Among Americans between the ages of 18 and 24, the figure drops to less than ten percent.

Read FindLaw's Press Release on the wills survey. You can also listen to a podcast of an interview with attorney Michael Jordan (author of the book Drafting Wills and Trust Agreements) on the importance of understanding the extent of your estate, and having a proper will in place.

Countrywide Financial Corporation, the nation's biggest mortgage lender, has been sued by the attorneys general of California and Illinois, who charge that the company engaged in false advertising and deceptive lending practices that led to thousands of foreclosures.

On Wednesday, Illinois Attorney General Lisa Madigan announced the filing of a lawsuit against Countrywide, alleging that the company engaged in "a single-minded quest to dominate the nation's mortgage market" by selling expensive and risky loans products to home buyers who could not afford them, causing a "skyrocketing number of home foreclosures" in the state. Also on Wednesday, the office of California Attorney General Edmund G. Brown Jr. announced that it was suing Countrywide and its top two corporate officers for deceptive advertising and unfair business practices, claiming that the mortgage lender pushed homeowners into expensive and risky loans so that the company could sell more loans to third-party investors. The Chicago Tribune reports that "[m]ore states are likely to jump on the bandwagon as public officials attempt to assign blame and make hay from the mortgage industry implosion that has led to record foreclosures and rocked the U.S. economy."

Supreme Court Upholds Gun Rights

Individuals have a constitutional right to possess firearms and use them for lawful purposes like self-defense and hunting, the U.S. Supreme Court ruled today in its first decision on the interpretation of the Second Amendment and the right to bear arms.

In today's ruling, the Court parsed the language of the Second Amendment, which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Writing for a 5-4 majority, Justice Antonin Scalia declared that the Amendment protects an individual's right to possess and use firearms (for lawful purposes) "unconnected with service in a militia." The Court held that the Amendment's prefatory clause -- the reference to a well regulated militia -- "announces a purpose, but does not limit or expand the scope of the second part" of the Amendment, the text and history of which "demonstrate that it connotes an individual right to keep and bear arms." Today's ruling came in a challenge to a District of Columbia ban on handguns, which the Court overturned as unconstitutional.

Top Court Rejects $2.5B Exxon Valdez Damage Order

The U.S. Supreme Court on Wednesday rejected a $2.5 billion punitive damages order against Exxon Mobil Corp., ruling that the amount was excessive and should have been in line with the actual harm caused after the Exxon supertanker Valdez ran aground off the coast of Alaska in 1989, spilling millions of gallons of crude oil into Prince William Sound.

In today's 5-3 decision, the Court held that in maritime cases like the Valdez accident, punitive damages should not exceed the amount of compensatory (or actual) damages attributable to the incident. The Court re-set the punitive damages award to $507.5 million, an amount equal to the lower court's calculation of appropriate compensatory damages caused by the spill. In 1994, a federal jury in Alaska ordered Exxon to pay $5 billion in punitive damages, an amount that was later cut to the $2.5 billion award at issue in today's ruling. Reuters reports that Exxon lawyers called the $2.5 billion award "larger than the total of all punitive damage awards upheld by federal appellate courts in U.S. history," while "[l]awyers for the plaintiffs said the award represented just a few weeks of Exxon Mobil's current net record profits."

New California Cell Phone Laws Take Effect 7/1

Beginning on July 1, drivers in California will need to use a hands-free device to talk on the phone while operating a vehicle, and drivers under the age of 18 will be prohibited from any non-emergency use of an electronic device while driving. The new California laws are part of a nationwide trend toward limiting the use of phones and other wireless devices that can distract drivers from safe vehicle operation.

According to a Press Release from the Office of the California Governor -- which pegs cell phones as the number one cause of distracted driving accidents in the state -- violations of the new laws will result in a minimum fine of $20 for a first offense, and $50 for each subsequent offense. The Governor's office cites California Highway Patrol (CHP) statistics showing that in 2007, 1,091 traffic accidents in California were caused by drivers on hand-held cell phones, with 447 injuries resulting from those incidents.

The Insurance Institute for HIghway Safety (IIHS) reports that six states (California, Connecticut, New Jersey, New York, Utah, and Washington) and the District of Columbia now prohibit drivers from talking on hand-held devices (See an IIHS chart showing nationwide cellphone-driving laws).

Government's Mortgage Fraud Crackdown

The Federal Bureau of Investigation (FBI) announced Thursday that more than 400 individuals have been indicted on charges stemming from mortgage fraud schemes, and investigation of corporate wrongdoers is ramping up.

According to an FBI Press Release, the agency launched "Operation Malicious Mortgage" in March 2008, in response to the threat that mortgage fraud poses to consumers, the U.S. housing market, and the credit industry. The operation is focused on three types of mortgage fraud schemes:  lending fraud, foreclosure rescue scams and mortgage-related bankruptcy schemes. CNNMoney.com reports that "Some 19 companies, including mortgage lenders, investment banks, hedge funds, credit-rating agencies and accounting firms, are being looked at."

In a decision that may make it easier for workers to show that they have suffered age discrimination on the job, the U.S. Supreme Court on Thursday ruled that employers who implement policies that have a disproportionately negative impact on older employees -- such as layoffs -- bear the burden of proving that the action was motivated by a reasonable factor other than an employee's age.

The plaintiffs in the case were subjected to a layoff in which 30 of 31 employees were over 40 years of age, and filed a "disparate impact" suit under the Age Discrimination in Employment Act of 1967 (ADEA). In Thursday's 7-1 decision, the Court held that an employer facing such a disparate-impact claim under the ADEA -- and claiming that an employment decision was based on "reasonable factors other than age" -- has the burden of proving both the valid non-age factors and the reasonableness of the decision.

Fake Cancer 'Cure' Product Warnings

Consumers should not buy or use products that are promoted as treatments or "cures" for cancer, according to the U.S. Food and Drug Administration (FDA). The agency has sent citation letters to a number of companies and individuals that engage in the fraudulent marketing of these products.

In a News Release issued on Tuesday, the FDA announced that it was sending Warning Letters to 23 U.S. companies and two foreign individuals involved in the sale of a variety of tablets, teas, tonics, and creams sold mainly on the Internet (See the complete list: 125 Fake Cancer 'Cures' Consumers Should Avoid). These products -- which make unfounded claims such as "treats all forms of cancer" and "targets cancer cells while leaving healthy cells alone" -- are considered unapproved new drugs marketed in violation of federal laws, according to the FDA.

Same-Sex Marriages Begin in California

Same-sex couples in California began officially tying the knot on Monday evening, as a historic state court ruling opening the door to same-sex marriage went into effect.

A number of counties in the state -- including Los Angeles, San Francisco, and Sonoma counties -- began issuing marriage licenses to same-sex couples at 5:01 p.m on Monday, when the California Supreme Court's rejection of the state's ban on same-sex marriage became official. A November ballot initiative will allow Californians to vote on a state constitutional amendment that would ban same-sex marriage, and Reuters calls the next few months a "crucial test" for supporters of gay and lesbian rights in the state.

FindLaw Introduces "FindLaw Answers"

The new "FindLaw Answers" feature offers users a new way to find and share legal information on FindLaw.com, with information on common legal issues and dilemmas presented in an easy-to-use question-and-answer format. With FindLaw Answers, users can:

  • Browse Frequently Asked Questions (powered by the ABA's Family Legal Guide), a repository of common legal questions accompanied by straightforward answers that are devoid of legalese.
  • Post a Question to Answers Q&A and let the FindLaw community help you find the legal information you are looking for. You can also use this forum to browse questions submitted by other community members.

FindLaw Answers is a good starting point for anyone looking for information on legal concerns like enforcing workplace rights, creating a will, renting an apartment, and much more.

Home Builders Agree to $4.3M Pollution Settlement

Four of the largest home builders in the U.S. have agreed to pay $4.3M in civil penalties to resolve alleged violations of storm water run-off regulations at home construction sites in 34 states, federal officials announced Wednesday.

The four home builders -- Centex Homes, KB Homes, Pulte Homes, and Richmond American Homes -- "have agreed to implement company-wide compliance programs that go beyond regulatory requirements and put controls in place that will keep 1.2 billion pounds of sediment from polluting the nation's waterways each year," according to a U.S. Environmental Protection Agency (EPA) press release. The EPA and U.S. Department of Justice had charged the four companies with violations of the Clean Water Act, which requires construction sites to have controls in place to prevent storm water pollution from entering nearby waterways.

The lethal injection procedure used by the state of Ohio could cause pain to condemned prisoners, and is therefore unconstitutional, a judge in that state ruled on Tuesday.

In issuing the decision, Lorain County Common Pleas Judge James Burge "ordered the Ohio Department of Rehabilitation and Correction to stop using the drugs that paralyze muscles and stop the heart, and simply administer a lethal dose of an anesthetic," the Cleveland Plain Dealer reports. In April, the U.S. Supreme Court ruled that the state of Kentucky's lethal injection protocol (involving the administration of three drugs) did not violate Eighth Amendment protections against cruel and unusual punishment. That decision -- Baze v. Rees -- effectively lifted an informal moratorium on executions that had been in place since the Court undertook review of the case. The New York Times reports that, since the Baze ruling, executions have been carried out in Georgia (2), Mississippi (1), South Carolina (1), and Virginia (1), while executions in Texas are scheduled to resume on Wednesday.

Crime Rates Down in 2007

Violent crimes and property crimes were both down nationwide last year, according to a preliminary report on 2007 crime statistics released Monday by the Federal Bureau of Investigation (FBI).

In Crime in the United States 2007, the FBI reports that the nationwide violent crime rate dropped for the first time since 2004, down 1.4 percent from 2006. Property crimes saw a 2.1 percent decline from 2006. In terms of crime rates by U.S. region, the Northeast saw the highest reduction in violent crime, with a 5.4 percent decrease from 2006 to 2007. The South was the only region in which violent crime rose (0.7 percent). Reuters reports that the 2007 numbers "appear to show that the two years of increases in violent crimes -- 1.9 percent in 2006 and 2.3 percent in 2005 -- represented just a temporary upswing rather than the start of a long-term trend of more crime."

FDA: Don't Eat Certain Types of Raw Tomatoes

The U.S. Food and Drug Administration (FDA) is warning consumers nationwide to avoid eating certain types of raw tomatoes unless the source of the tomatoes can be traced to states or countries not associated with a recent outbreak of Salmonella infection.

In a warning issued on Friday, FDA advises consumers to "not eat raw red Roma, raw red plum, raw red round tomatoes, or products that contain these types of raw red tomatoes" unless the tomatoes are from states and countries not linked to the outbreak. FDA encourages consumers to contact the store where tomatoes were purchased to verify the source. Other types of tomatoes -- including cherry tomatoes, grape tomatoes, and tomatoes sold with the vine still attached -- have not been linked to any illness.

The new warning comes after federal health officials last week announced a potential link between consumption of raw tomatoes and an outbreak of Salmonella serotype Saintpaul infections. The Centers for Disease Control and Prevention (CDC) reports that, since mid-April, 145 persons in 16 states have been infected with the same strain of Salmonella Saintpaul, with 23 persons requiring hospitalization for their illness.

Senate Hearing on Vehicle Roof Strength

A U.S. Senate committee on Wednesday considered a proposal for new vehicle roof crush standards, part of a Transportation Department initiative to reduce vehicle rollover fatalities and injuries.

An Upgraded Roof Strength Proposal, released by the U.S. Department of Transportation (DOT) in January 2008, would require manufacturers to design vehicle roofs that withstand at least 2.5 times the weight of the vehicle on both sides of the roof. The Associated Press reports that members of the Senate panel on Wednesday voiced concerns that the proposed standards "offered little promise of significantly preventing fatalities from collapsing roofs in rollover accidents," and some lawmakers "railed against a provision that would limit the ability of plaintiffs to sue automakers in rollover cases." Wednesday's hearing featured research testimony from the Insurance Institute for Highway Safety.

FDA Looks at Arthritis Meds and Childhood Cancer

A possible link between rheumatoid arthritis medication and the development of cancer in children and young adults is being examined by the U.S. Food and Drug Administration (FDA), the agency announced Wednesday.

The FDA reports that it is investigating about 30 instances of the development of cancer in children and young adults who began taking "TNF blockers" before the age of 18. Tumor necrosis factor (TNF) blockers -- which include the brand name medications Remicade, Enbrel, Humira, and Cimzia -- are used to treat Juvenile Idiopathic (Rheumatoid) Arthritis, Crohn's disease, and other illnesses. FDA states that half the cancers were lymphomas, including both Hodgkin's and non-Hodgkin's lymphoma. According to Reuters, as part of the study, FDA has "asked the makers of Remicade, Enbrel and Humira for information on all cases of cancer reported in children and young adults treated with the drugs."

New Requirements for Travel to U.S.

Non-visa holding citizens of most European countries, Australia, and Japan will need to complete an electronic application process before traveling to the U.S., under a Department of Homeland Security program that will be in place by January 2009.

Under the Electronic System for Travel Authorization (ESTA) program -- which takes effect on January 12, 2009 -- citizens from "Visa Waiver Program" countries who wish to travel to the U.S. for 90 days or less will need to provide necessary biographical and eligibility information before their trip, using an online application system. The Department of Homeland Security (DHS) will review the application and make queries against law enforcement databases before issuing a travel eligibility determination. The ESTA applies to citizens and nationals from 27 countries that have been identified under the DHS "Visa Waiver Program," which includes most European countries, Australia, Japan, and New Zealand. ESTA does not apply to U.S. citizens traveling overseas or returning to the U.S. Reuters quotes DHS Secretary Michael Chertoff on the ESTA program: "Getting this information in advance enables our frontline personnel to determine whether a visa-free traveler presents a threat, before boarding an aircraft or arriving on our shores."

Salmonella Linked to Raw Tomatoes

A salmonella outbreak in New Mexico and Texas has been linked to the consumption of raw tomatoes, according to the Centers for Disease Control and Prevention (CDC). Similar illnesses in seven other states are being investigated.

Since late April, 40 persons infected with an identical strain of "Salmonella Saintpaul" have been identified in Texas and New Mexico, and those cases have been linked to uncooked tomatoes, according to CDC. Federal and state health officials continue to investigate the specific type and source of the affected tomatoes, but CDC reports that "preliminary data suggest that large tomatoes -- including Roma and red round -- are the source." According to the Associated Press "[a]nother 30 people have become sick with the same Salmonella Saintpaul infection in Arizona, Utah, Colorado, Kansas, Idaho, Illinois and Indiana."

June is National Safety Month

June is National Safety Month. To commemorate this year's "Make a Difference" theme, FindLaw's June Spotlight is on safety tips, injury prevention and National Safety Month resources.

According to the National Safety Council, throughout the month of June, "National Safety Month activities will address the most significant reasons for unintentional injuries and deaths in the American workplace, on the road and in the home and community." National Safety Month information and resources will focus on Emergency Preparedness, Distracted Driving, Poisoning Prevention, and Preventing Falls.