Common Law - The FindLaw Consumer Protection Law Blog

January 2009 Archives

Today, mortgage giants Fannie Mae and Freddie Mac announced they will extend their suspension of foreclosure evictions through February 28. Freddie Mac also announced a plan to help those living in foreclosed home rent the homes back.

The rental program announced today by Freddie Mac aims to allow owner-occupants and renters of foreclosed homes to stay in their homes. As stated in Freddie Mac's press release, owner-occupants of foreclosed homes with Freddie Mac owned mortgages will have the opportunity to rent their home back at market rate. Market rate will be set by a property management firm with whom Freddie Mac has contracted for the program. Renters in foreclosed homes with Freddie Mac owned mortgages will have to opportunity to re-rent the homes at market rate or the rate they were last paying, whichever is less.

The leases will be month-to-month. To qualify, participants will need to prove their ability to pay the rental amount and the homes will need to be up to housing codes.

As reported by the New York Times, Fannie Mae began a program for renters of foreclosed homes back in December.

Both Freddie Mac and Fannie Mae extended, through February 28, 2009, their halt on foreclosure evictions for single family properties with mortgages owned by the respective mortgage giants. As reported by WSJ's Market Watch, this is the third extension of the eviction suspension program, which began November 26, 2008.

Although both Fannie Mae and Freddie Mac have suspended foreclosure evictions, they have not stopped filing new foreclosures. Bloomberg reports that according to Brad German at Freddie Mac and Brian Faith at Fannie Mae, both are in fact still initiating new evictions proceedings, and have simply suspended taking the final step of locking people out of their homes.

Freddie Mac also expressed in its press release the desire to explore mortgage workout options with distressed homeowners. Ingrid Beckles, Senior Vice President of Default Asset Management at Freddie Mac stated that "[i]n about half of all foreclosure sales there is no conversation between the borrower and the mortgage servicer about workouts. Before starting the eviction process, we want to ensure there is one last effort to achieve a workout."

An Austin court recently upheld the tossing out of a malpractice suit a former client filed against his attorney over failure to sue doctors for Celebrex related medical malpractice. The case highlights a key element to legal malpractice claims: plaintiffs must prove they would have won the case they claim their lawyer botched.

As Andrews reports, Mark Hackett first sued the makers of the anti-inflammatory drug Celebrex for allegedly causing him kidney disease. The court's opinion explains that after investigating Hackett's claims, however, his attorneys advised that he voluntarily pull out due a lack of any evidence that Celebrex could have caused his kidney disease. His attorneys withdrew from the case with the court's permission, and Hackett later lost the suit.

Mr. Hackett then sued his first lawyers, however, over their not having filed medical malpractice suits against the doctors who had prescribed him Celebrex. What cost Mr. Hackett his case, again this time, was a lack of evidence that Celebrex could cause his kidney disease.

This is because one of the elements you must prove in a legal malpractice case is causation -- that the lawyer's mistake caused the injury you claim. This means plaintiffs must prove that the lawyer's mistake prevented them from winning the underlying case. In malpractice cases, it is sometimes referred to as the "suit within a suit" element.

As can be seen in Mr. Hackett’s case, it is difficult to prevail on a legal malpractice claim. This can be all the more reason to take care in choosing a lawyer at the outset.


 

James Brown died on Christmas in 2006. Since then, his survivors have been fighting over his estate. There may finally be an agreement in place, even if it isn't what the Hardest Working Man in Show Business would have wanted.

According to the AP, an agreement has been reached between many of the parties who have been fighting over the late legend's estate. The agreement now awaits approval court approval.

As the AP notes, central in the dispute has been a charitable trust established by Soul Brother Number One to help educate poor children throughout Georgia and South Carolina. Reportedly, Brown's most valuable assets--rights to his music, his image and to his Beech Island South Carolina home--were put into his "I Feel Good" educational trust. The AP notes that some close to the Mr. Brown insist he would hate the fact that his children are getting a larger cut of what would otherwise go to the trust.

As noted in this blog last week, trusts can be one way of preventing certain assets from having to go through probate. This can allow those assets to get to the desired beneficiaries much more quickly.

In Mr. Dynamite's case, however, this couldn't happen because his heirs challenged the validity of his will, and also the validity of his charitable trust. Associated Content reported that that five of his children sued, alleging that the trust was merely set up enrich the advisors who helped Brown put the trust together.

Another way the end agreement doesn't resemble the will left by Mr. Brown is that it includes Tomi Rae Hynie (Brown's purported widow) and their son James Brown II. Even in his seventies, the Godfather of Soul illustrated the age old lesson of updating your will after the birth of another child. The contested will was reportedly signed by Brown ten months before the birth of his last child and twelve months before he allegedly married his final wife.

An FDA inspection of a Georgia food facility has revealed that the company at the center of a nationwide salmonella outbreak investigation likely knowingly shipped contaminated peanut products. The investigation -- and the hundreds of peanut product recalls it has spawned -- has prompted Congress to call for hearings on the outbreak that has sickened more than 500 people and caused at least eight deaths.

The FDA inspection report released Wednesday details a number of questionable practices at the Peanut Corporation of America processing plant in Blakely, Georgia. The report identifies at least 10 instances in which batches of peanut paste, peanut butter, and chopped peanuts tested positive for salmonella contamination, were subsequently retested until negative results came back, and then were shipped to food distributors and resellers. According to the New York Times, citing a George Washington University food safety expert and members of the FDA's inspection team, "[i]t is illegal for a company to continue testing a product until it gets a clean test," and "the company’s tests showing salmonella contamination should have led the company to take actions to eliminate the contamination."

The FDA's inspection also revealed numerous health code violations and questionable practices at the Georgia plant, including the presence of mold in the facility and improper food storage practices. Newsday reports that a congressional committee chaired by Rep. Henry Waxman (D-Calif.) will hold hearings on the peanut product contamination and related salmonella outbreak, begininning on February 11.

Heath Ledger's Life Insurance Lawsuit Settled

Heath Ledger's life insurance company, ReliaStar Life Insurance Company, has settled a lawsuit over a $10 million policy claim on behalf of Ledger's daughter, Matilda Rose. The lawsuit was brought by Ledger's former attorney, John S. LaViolette, after ReliaStar claimed it wanted to investigate the possibility that Heath Ledger's death was a suicide (which would nix a life insurance payout). At the time, officials had already found that Ledger died from an accidental prescription-drug overdose.

William Shernoff, the attorney handling the case for LaViolette and Matilda Rose, didn't waste much time in going public with claims that the insurer was dragging its feet, issuing a press release stating, "There's a young girl whose father died who is entitled to this money, and ReliaStar is doing everything it can to avoid paying."

Although terms and details on the suit's settlement have not been released, Shernoff's tone changed considerably in his announcement today, "The parties are pleased that they were able to reach an amicable settlement and solve the dispute." For those wondering what's going to happen to the money, considering that the beneficiary is 3-year-old Matilda Rose, the AP clarified that "Ledger's attorneys are seeking a closed hearing next month to establish a court guardian to represent [her]."

There are various different types of guardianships, but with minors they usually involve guardianship of the minor themself (a guardianship over their "person"), a guardianship over their property and assets (their "estate"), or a combination of both.  When it comes to assets, guardians have a duty to look after the minor's personal property, assure the proper education and care for the child, and preserve excess funds and assets.

Heartland Payment Data Breach Draws Class Action Lawuit

A class action lawsuit has been filed against Heartland Payment Systems, Inc. over the loss of credit card information to hackers in 2008, and the company's subsequent handling of the data breach. Some computer experts estimate that the breach may have compromised more than 100 million credit cards.

According to the company's website, Heartland is the fifth largest payment processor in the US and ninth largest worldwide. It processes more than 11 million transactions per day.

As searchsecurity.com reported, on inauguration day, Heartland disclosed that the week before, the company found evidence of an intrusion. Heartland has not disclosed how many credit cards were compromised, nor did it disclose which merchants were involved. Security experts have estimated that the number of cards compromised could top 100 million, eclipsing the massive TJX Companies data breach in 2007, when over 45 million cards were compromised.

Searchsecurity.com first reported the filing of the class action complaint. As alleged in the complaint, Heartland learned it had been hacked until sometime around October of 2008. Purportedly, Visa and Mastercard alerted Heartland of a possible problem after noticing suspicious activity on some cards. Heartland then allegedly took months—until mid-January—to confirm that it had indeed been infiltrated and that malware residing within Heartland’s systems was intercepting payment information sent to Heartland for processing.

On behalf of those whose information was compromised, named plaintiff Alicia Cooper's complaint alleges negligence regarding the data breach itself, and a host of claims relating to Heartland’s disclosure of the breach and purported breach of duties to cardholders and merchants. Chief amongst the concerns raised by the complaint is Heartland's alleged failure to notify cardholders or merchants that their cards had been compromised. The complaint also alleges that Heartland was not compliant with the Payment Card Industry Data Security Standard controls demanded by major credit card companies.

The Wisconsin Supreme Court has ruled that cheerleaders who are injured while participating in the activity cannot sue other participants for accidentally causing the injuries. Brittany Noffke, a varsity cheerleader at Holmen High School, brought the lawsuit after sustaining a serious head injury when she fell off the shoulders of another cheerleader and her spotter was not in position to catch her.

As the AP reported, the ruling was based on a "Wisconsin law that prevents participants in 'contact sports' from suing each other for unintentional injuries." The law at issue specifically states:

"A participant in a recreational activity that includes physical contact between persons in a sport involving amateur teams, including teams in recreational, municipal, high school and college leagues, may be liable for an injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused the injury acted recklessly or with intent to cause injury."

Although some people might associate contact sports with football, hockey, rubgy, and the like, the court found that cheerleading was clearly a recreational activity that "includes physical contact between persons". As a result, unless a cheerleader is acting recklessly (or, of course, intentionally), they can't be sued for causing another cheerleader's injuries.

This case was significant, as the "National Cheer Safety Foundation said the decision is the first of its kind in the nation." Some parents had worried about their potential liability, as well as the need for insurance, in the event the Wisconsin decision had gone the other way. Cheerleading has some of the highest rates of injuries in all of female high school and college sports. ABC previously reported on some statistics indicating a rise in cheerleading accidents, as well as its causes:

"estimated 16,000 cheerleaders injured seriously every year in accidents involving dramatic stunts and tumbles. Sports medicine researchers at Columbus Children's Hospital warn that the sport has become much more dangerous in the last two decades. In a study published in the January issue of the journal Pediatrics, the authors conclude the number of emergency room visits for cheerleaders between the ages of 5 and 18 increased 110 percent from 1990 to 2002."

A national analysis of "the cases of 209,000 children treated in emergency rooms, as recorded by the U.S. Consumer Product Safety Commission's National Electronic Injury Surveillance System" found that "the increasing emphasis on daring gymnastics and high-flying acrobatics has made cheerleading much more athletically demanding and risky in recent years."

However, it should be noted that the statistics and studies above have not been without their share of criticism, as some defend the sport's safety record and rules being implemented to protect participants. However, the bottom line is that state laws on athletic activities and liability vary from state to state. Furthermore, in cheerleading, as with many sports, there can be significant differences from school to school on the level of competition expected from participants, the quality of a school's facilities, and safety policies and procedures.

Below are some links to more information on the subject that might be helpful to participants and parents.

President Obama signed his first piece of legislation into law today. It was the Lilly Ledbetter Fair Pay Act of 2009, which will increase workers ability to sue for past pay discrimination.

As the New York Times reports, Lilly Ledbetter may not get her money from Goodyear, but a law in her name has changed the playing field for employees looking to recover for discriminatory pay. In 1998, Lilly Ledbetter sued the Goodyear Tire & Rubber Company, where she had worked for almost twenty years, because Goodyear allegedly paid her less over time than it paid men holding similar titles and performing the same work. Her case drew much attention when the Supreme Court ruled in 2007 that she could not recover for her discriminatory pay because she filed her claim too late.

The key issue was when someone must sue if they claim discriminatory pay under Title VII, which protects employees from discrimination on the basis of race, color, religion, sex or national origin. The Supreme Court ruled that Ms. Ledbetter needed to have filed a complaint with the Equal Employment Opportunity Commission within 180 days of when she first started being paid disproportionately. Since she filed her claim many years after that, she was out of luck.

The problem was that Ms. Ledbetter didn't learn that her male colleagues were paid much more than she was paid until she was approaching retirement, many years after the pay discrimination began. To Obama, and to the legislation's supporters, the Supreme Court's interpretation of the law was out of touch with realities of the American workplace, making it practically impossible to recover for pay discrimination which may go years unnoticed.

Enter the Lilly Ledbetter Fair Pay Act of 2009. What it does is reset the clock every time an employee gets paid. For example, let's say someone's discriminatory pay began 20 years ago, and their pay remained discriminatorily low all the way through last week's paycheck. Under the old interpretation, the clock to sue started twenty years ago, and expired 180 days (or 300 in some states) after that. Under the new law, the clock to sue restarts each time the employee gets paid, on the theory that the employee's pay this week is informed by the discrimination that has kept their pay unfairly low for years.

At the signing ceremony, Obama paid homage to Ms. Ledbetter, and placed her story in the larger context of American working economy. The Washington Post quoted him as saying:

"So in signing this bill today, I intend to send a clear message: That making our economy work means making sure it works for everyone. That there are no second class citizens in our workplaces, and that it's not just unfair and illegal - but bad for business - to pay someone less because of their gender, age, race, ethnicity, religion or disability. And that justice isn't about some abstract legal theory, or footnote in a casebook - it's about how our laws affect the daily realities of people's lives: their ability to make a living and care for their families and achieve their goals."

Ms. Ledbetter will still not get back the money Goodyear owes her. The new law takes effect for all claims pending on or after May 28, 2007. But her case changed the playing field for people seeking to recover for past discriminatory pay.

FindLaw Launches New 2009 Tax Center

FindLaw announces the launch of its new Special Edition 2009 Tax Center, providing you with up-to-date information and resources for filing your 2009 income tax return with the Internal Revenue Service (IRS), and with your state tax agency.

Every new year brings new tips for getting your tax returns together in time for the April 15 deadline, and new changes to the hundreds of pages of the Internal Revenue Code -- the law that spells out what you can and cannot do in filing your federal income tax return. Filing tips, practical information, and hints on tax law changes are important for all taxpayers to keep in mind, but can especially come in handy for parents, homeowners, businesses, students, and others looking to save money -- by taking advantage of new and updated tax deductions and tax credits.

So, what do you need to know for 2009? Check out FindLaw’s Special Edition 2009 Tax Center for a step-by-step guide to preparing and filing your return; tips on avoiding audits and penalties; informative videos and podcasts; links to tax forms, tax laws, and helpful resources from the IRS and your state tax agency; and much more.

Washington state legislators have put forth a bill to extend the state's domestic partnership benefits. The bill attempts to complete the inclusion of domestic partners everywhere Washington law addresses married people.

The Seattle Times reports that state Senator Ed Murray and Representative Jamie Pedersen are among those sponsoring the legislation. Additions to existing benefits would include the right to use sick leave to care for a domestic partner, the right to wages and benefits when a domestic partner is injured or killed, unemployment and disability insurance benefits, workers' compensation coverage, insurance related rights, adoption, child custody and child support rights, and business succession rights.

Under the legislation, "for all purposes under state law, state registered domestic partners shall be treated the same as married spouses."

According to Lambda Legal, this would add Washington to the list of 5 states giving same sex partners the benefits and responsibilities associated with marriage under the legal name of either domestic partnership or civil union. The list currently includes California, New Hampshire, New Jersey, Oregon and Vermont. More states recognize domestic partnerships, but grant them fewer rights. Massachusetts and Connecticut currently recognize same sex marriage rights.

California previously recognized gay marriages, but Proposition 8 in last year's election changed California's constitution to define marriage as only between a man and a woman. The legality of Prop 8 remains the subject of court battle. In New Jersey, a legislative commission recently recommended that the state grant full marriage rights instead of the civil unions under current New Jersey law.

In Hawaii, a majority in the state's House of Representatives reportedly supports legislation that would create civil unions. Similarly, New Mexico's legislature will reportedly be considering legislation to grant the legal rights and obligations of marriage to domestic partners.

Meanwhile, advocates for same sex relationship rights in Utah suffered a setback. As the Salt Lake Tribune reports, a bill was killed in committee which would have allowed financial beneficiaries (including same sex partners) beyond spouses, parents and children the right to sue over someone's wrongful death.

In states like Hawaii and New Mexico, legislation extending full marriage-like rights has stalled or met narrow defeat in the past. With many changed legislatures following the 2008 election, and the issue to remain hot button, the next year could bring changes to same sex relationship rights in many states.


 

Some corporate bankruptcy attorneys get paid over $1,100 per hour to help their clients negotiate the bankruptcy restructuring process. Creditors, however, often get much less than what they are owed after all is said and done. While one might balk at lawyers getting $18.50 per minute while creditors get 35 cents on every dollar they are owed, bankruptcy can be a useful tool for businesses and individuals looking to right their financial ship.

Bloomberg reports that top dollar bankruptcy attorneys now command in excess of $1,100 per hour for their services. UCLA bankruptcy law professor Lynn LoPucki estimates that billing rates for such bankruptcy attorneys are climbing at four times the rate of inflation. This, at a time when bankruptcy creditors are collecting less and less, dropping toward 35%, of the money owed them by bankrupt companies.

The need for bankruptcy lawyers is obvious. USA Today reported that individual bankruptcy filings increased by 1/3 in 2008. Top dollar attorney price tags for enormous corporate bankruptcies should not prevent individuals from informing themselves as to the possible benefits of using an attorney to file for bankruptcy.

Alternatives to bankruptcy must be explored. If applicable, filing for bankruptcy can offer possible benefits including delay or avoidance of foreclosure and wiping out some credit card debt and other unsecured debt. Bankruptcy will not likely help with child support, alimony, most tax debts, student loans, or secured debts.

There is also a possibility that this year we will see significant change to key bankruptcy provisions. Many wanted the economic stimulus package currently before Congress to include new rules allowing judges to force modification of mortgages "under water" because the mortgages are for more than the value of the home. The Washington Independent reports that these new rules were taken out of the stimulus plan to make it more likely to pass with Republican support. Bankruptcy reform to let judges "cramdown" some under-water mortgages to the current value of the home is being pushed in separate legislation.


 

Many families have some kind of familiar morning routine. The parents might get up, get the kids ready for school or the day's activities, strap them into their car seats and drive off. The Miami Herald reported that one Florida family's early morning routine turned into tragedy this past Sunday when Hector Serrano took his three children with him to drop off his wife, Mirian, at her hospital job. On the way home, while stopped at a red light, their minivan was rear-ended by a Chevrolet Trailblazer driven by Gabriel Delrisco, crushing the minivan "like an accordion." Hector survived the accident, but the couple's children, 10-year-old Hector, Esmeralda, 7, and Amber, 4, were killed.

The cause of the accident is under investigation, and at this point no charges have been brought against Delrisco, who remains at a hospital. Police and prosecutors are awaiting results of a blood analysis to see whether Delrisco had used drugs or alcohol before the accident.

Nevertheless, a Florida Highway Patrol lieutenant stated, ''There were no skid marks,'' which would indicate Del Risco did not hit the brakes before the accident. However, Delrisco's attorney Abe Koss explained that the SUV's brakes failed. Regardless, many people might be wondering why Delrisco was on the road behind the wheel in the first place.

These questions are popping up because it turns out that Delrisco has been cited 26 times since 2001 for various traffic infractions, ranging everywhere from non-moving infractions to driving under the influence (DUI). On the DUI offense, his license was mandatorily suspended for six months, but "since then, he has been ticketed for reckless driving, speeding, failure to stop at a traffic light and crossing a median. Many of his tickets were dismissed or a judge withheld adjudication."

When a judge "withholds adjudication" in Florida, this means the individual is avoiding a conviction and the resulting consequences. However, withholding of adjudication under Florida law is supposed to be for situations where:

1) a defendant who is not likely again to engage in a criminal course of conduct; and

2) the ends of justice and the welfare of society do not require that the defendant suffer the penalty imposed by law

Still, Delrisco's "last two withholds of adjudication, for speeding in 2004 and passing around a barrier in 2006, were automatically granted because he enrolled in traffic school. Without those withholds, he might have accumulated enough points to have his license suspended."

One of the first things people are told in a drivers' ed course is that driving is a privilege, and not a right. Laws dealing with revocation of drivers licenses, whether dealing with simple traffic violations or DUI offenses, have tough task in setting a "hard line" at which a violator must lose their driving privileges. It is too early to know the exact circumstances surrounding the Serrano family's crash, but this might end up being a case that causes Florida legislators and courts to take a close look at their system.

Pfizer in Record $2.3B Settlement Over Bextra Claims

Pfizer Inc., manufacturer of Bextra, will pay $2.3 billion to settle a federal investigation over the company's off-label promotion of the prescription painkiller, which was pulled from the market in 2005.

Bextra (valdecoxib) was intended to relieve symptoms of osteoarthritis and rheumatoid arthritis in adults, but was pulled from the market in 2005 because of links to serious cardiovascualar problems in users of the drug. According to the Wall Street Journal, "[i]t isn't clear what off-label uses Pfizer's marketing of Bextra allegedly involved," although "pt]he company settled another case in October in which the Kentucky state attorney general complained that Pfizer promoted Bextra for acute and surgical pain, despite lacking approval for such uses."

News of Monday's record settlement agreement was lost in the shuffle over Pfizer's announcement of its $68 billion takeover of Wyeth Pharmaceuticals earlier this week. If the settlement agreement is approved in federal court, the $2.3 billion would be the largest amount ever paid by a drug company to resolve charges of wrongdoing over the marketing of pharmaceuticals. Pfizer's announcement of the Bextra settlement agreement on Monday came just a few weeks after Eli Lilly & Co. pled guilty to illegally marketing the antipsychotic drug Zyprexa, and agreed to pay $1.42 billion to settle a federal suit in Pennsylvania federal court.

A prosecutor in the trial of Kimberly Trenor for the murder of her daughter, Riley Ann Sawyers (widely known as "Baby Grace"), leveled chilling and emotionally-charged accusations in opening arguments to the jury, according to the AP. In what can probably be fairly described as a direct appeal to jurors' heart-strings, the prosecutor told them that the "slain toddler tried to stop her mother and stepfather from beating her to death by reaching out to her mother and saying, 'I love you,'" to no avail. Jurors were later noticed shedding tears as the prosecution played back a three-hour videotaped statement by Kimberly Trenor to investigators.

After her decomposed remains were found in a container on a small island in Galveston Bay in October 2007, the child was named "Baby Grace" while investigators tried to determine her identity. Eventually, the girl's grandmother recognized her from a forensic artist's sketch, providing a crucial break in the case.

Despite the horrific allegations being made, prosecutors did not pursue the death penalty against either Kimberly Trenor or her husband, Royce Zeigler II, who is going to be tried separately on murder charges. The prosecution didn't believe it could prove that either of the two would be a "future danger", which is a controversial requirement for the death penalty under Texas law.

Nevertheless, the emotional statements being made from the get-go emphasize the challenges facing the defense attorney in the case. Explaining to the jury, defense attorney Tommy Stickler Jr. told them that Trenor "never intended to kill her daughter in 2007 and that things just 'spun out of control.'" These statements appear to indicate the defense is going to focus on the intent or mental state of Kimberly Trenor, as opposed to her acts, to defend her in the case. "I don't want to use the word accident, but this wasn't something that was intentional," Stickler said. Another key aspect of the case will be how each defendant's separate case affects the other's, since they've pointed the finger blaming each other for the child's death.

Yesterday the Illinois Senate began the impeachment trial of embattled governor Rod Blagojevich. He is boycotting the impeachment proceedings, opting instead for an all out media blitz, "talking to Americans to let them know what's happening in the land of Lincoln."

The Washington Post reported that although he has not challenged the impeachment process in court, Blagojevich has opted not to attend, be represented, or present any defense in his impeachment trial. His argument? It's a "kangaroo court" in which he is not allowed to call the witnesses he wants or have access to his wiretapped conversations in their entirety.

Blagojevich's purported problem with his impeachment is that it is based on still unproven criminal allegations. As the Chicago Tribune reports, federal prosecutors requested, and Illinois legislators agreed, that Blagojevich's impeachment proceedings not interfere with the ongoing criminal case against him. This was written into the rules passed by the Illinois legislature for Blagojevich's impeachment trial. This means no calling certain witnesses and no access for Blagojevich to the entirety of the wiretapped conversations.

As Cornell law professor Michael Dorf blogs, the Illinois procedure set up for Blagojevich do pose problems for him, but they also probably passes muster under current Supreme Court precedent.

Blagojevich's mission now? To save America from the dangerous precedent of legislators undoing the will of the people by removing an elected official without his unfettered defense. As he informed reporters, "this is much bigger than me and Illinois."

About him? Blagojevich said he thinks of the obstacles faced by men such as Mandela, Ghandi and Martin Luther King to help keep himself going. And about the stuff on the tapes? "There's embarrassment there, obviously... in private conversations," he explained when ambushed by Geraldo Rivera outside The View. But during all of the expletive laden conversations captured on tape, Blagojevich assured NBC's Amy Robach that no women were on the line.

The future? His impeachment trial continues, as does his criminal case. The New York Times reports that the impeachment trial will feature the public playing of four of the infamous taped conversations. Criminally, he’s been charged with solicitation of bribes and conspiracy to commit mail and wire fraud. These carry 10 and 20 year possible sentences. And the Chicago Sun Times reports that key defense counsel Edward Genson has quit. Time quotes Genson as saying, "I have practiced law for 44 years.  ... I never require a client to do what I say, but I do require clients to listen to what I say."

But the WSJ Washington Wire reports a bright spot for Blagojevich. He has competing offers to host Chicago radio shows. One is from WGN executives impressed in part by the "remarkable facility with banter displayed by Gov. Rod Blagojevich," and the fact that Blagojevich is "ratings gold." WGN is owned by the Tribune Corporation. One of the allegations against Blagojevich is that he threatened to hold up the Tribune Corp.'s sale of Wrigley Field unless the Chicago Tribune fired certain anti-Blagojevich editorial staff.

Even insurers aren't immune from the effects of the downturn. A report by WFTV and the AP indicates that State Farm Florida has filed plans to "discontinue its Florida property insurance product lines," which would include "insurance coverage for homeowners, renters, condominium unit owners, personal liability, boats, personal articles, and business property and liability policies."

The reason? In mid-2008 State Farm's requested 47-percent Florida homeowners insurance rate increase was rejected by Florida's Office of Insurance Regulation, and State Farm Florida has been struggling since, even in the absence of any major storms in the hurricane-prone state. The WFTV story passed on the company's position:

"Faced with steeply declining resources to cover future claims and expenses, State Farm Florida has little choice," State Farm Florida President Jim Thompson said. "This is not an action we wanted to take, but one we must take given the realities of the Florida property insurance market. We regret the impact this will have on our customers, employees and agents in Florida."

"The state itself faces similar challenges as it deals with the fragile financial condition of government backed Citizens Property Insurance Corp.," Thompson said. "State Farm Florida is a private company and must have adequate capital to ensure financial stability. And it is our responsibility to our policyholders to provide a sound financial framework for the coverages we offer."

Although it might be up for debate as to whether the 47 percent increase should have been approved in light of the particularly difficult Florida real estate market, property owners (or those considering property ownership) across the nation should prepare themselves for the real possibility that, as insurance companies tighten their belts in the recession, owners could be faced with situations where: 1) their rates are being increased significantly; 2) they must find new coverage; or 3) the policies being offered in their area decrease their coverage.

Below are some links that are helpful when looking for property insurance, as well as in understanding the regulations covering the field.

Congress Passes Digital TV Delay Bill

After defeating the bill earlier, the U.S. House of Representatives has voted to pass a law that will delay the nationwide switch of over-the-air television signals from analog to digital -- from the original February 2009 deadline to a new date in mid-June. So, U.S. households receiving over-the-air (as opposed to cable/satellite) television signals will have about four extra months to prepare before the switch to digital takes place.

According to the FCC's special DTV.gov website, when the switch does take effect, "Consumers who rely on antennas (including outside antennas and 'rabbit ears') to receive over-the-air broadcast signals on TV sets having only analog tuners will need to obtain separate digital-to-analog set-top converter boxes to watch over-the-air TV. These boxes receive digital signals and convert them into analog format for display on analog TVs."

President Obama is expected to sign the Digital Delay Bill, which puts the signal switch on hold until June 12, 2009 (it had been scheduled to take place on February 17). Reuters reports that "Obama supports the delay, sharing concerns that 20 million mostly poor, elderly and rural households were not ready for the congressionally mandated switch."

An unwelcome, or perhaps even dreaded, part of going into a new job is going through and filling out all of the administrative paperwork that it entails. This could be anything and everything from tax forms, to health care plan forms, to employment handbooks, contracts, and policy guides. All of these are, of course, important in their own way, but a case decided today by the Supreme Court (Kennedy v. Plan Admin. for DuPont Savings & Inv. Plan) illustrates how important it is to accurately select and update beneficiaries in benefit plans.

The case involved William Kennedy, a DuPont worker, who had participated in the company's "savings and investment" plan, which was an employee pension benefit plan covered by federal law. He was married in 1971, and a few years later designated his wife as the beneficiary of the plan. About 20 years later, the marriage ended in divorce, and under the terms of the divorce decree the ex-wife gave up her interest in any pension benefits plans. However, William did not update his selected plan beneficiary to remove his wife, perhaps thinking there was no need or maybe simply forgetting about it.

When William passed away in 2001, his daughter Kari Kennedy became the "executrix" (administrator) for his estate. She ran into a roadblock when she asked for the benefits from DuPont's plan administrator, because they simply relied on William's designation form and paid the balance (some $400,000) to his ex-wife. From the outside looking in, that seems like a pretty crazy result. The truth is, however, that this happens more often than people think. Administrators who handle these plans often find it much easier (and safer) to pay out by relying on clear-cut forms that were filled out by the employee, as opposed to digging around into people's complicated family relationships and histories.

To make matters worse, state and federal laws don't always work together smoothly in these situations. Even though William's ex-wife had given up, in writing, her interest in the benefits during the state court divorce proceedings, it was unclear whether federal law allowed her to do that without a "Qualified Domestic Relations Order". Even though the Court cleared it up today saying William's ex-wife was allowed to give up her right to receive benefits, the administrator's payment of benefits to her was still okay. The bottom line ended up being that the benefits administrator was allowed to rely on William's plan beneficiary designation to pay out the funds to her, no matter what she had waived elsewhere.

Although it's possible that William's daughter and the estate could end up recovering the funds despite this decision, it seems clear that anyone who participates in plans (or has policies requiring designation of beneficiaries) should make a schedule to check on their choices and keep them updated on a fairly regular basis in order to avoid any unintended results.


The promoter of a monster truck show was tragically killed by a monster truck in Madison, Wisconsin this weekend. George Eisenhart Jr.'s death came one day after he touted the show's safety, and about a week after a boy was killed at a monster truck show in Tacoma.

The AP reports that Eisenhart, president and owner of Image Productions and a 15 year veteran of putting on monster truck shows, was killed after walking in front of one of the trucks during Saturday night's Monster Nationals Monster Truck & Thrill Show in Madison.  Danniel Patrick, a twenty year veteran of the monster truck circuit, was driving the monster truck Samson that killed Eisenhart.

One day beforehand, Eisenhart tried to ease any fears of danger at his monster truck show. He reportedly told CNN affiliate WKOW, "This is our 16th year. I wish I had a big piece of wood to knock on right now, but we have not had an incident besides a gal slipping in the aisleway at another location."

Just over a week ago, the AP reported that six year old Sebastian Hizey was killed at the Monster Jam show in Tacoma Washington, an event unaffiliated with Eisenhart's Image Productions. Hizey was killed by a frisbee sized piece of metal which flew off of monster truck Natural High as it cut donuts on the track.

Though fatalities at monster truck shows are reportedly rare, two in just over one week might make people wonder about the "assumption of risk" information printed on the back of many tickets for events and sporting activities (ski lift tickets, for example). As reported by the Tacoma News Tribune, Tacoma Dome events such as the Monster Jam where Sebastian Hizey was killed, have the following printed on them: "You assume any and all risks occurring before, during or after the event, including injury by any cause. You release management, facility, league, participants, clubs, Ticketmaster, and their respective affiliates and representatives from any related claims."

Such assumption of risk agreements do not forbid people from suing over accidents that happen during sporting events. They can be used as a defense by the venue, event organizer, or whomever else gets sued, but whether they work depends on the situation. The victim in question would need to be shown to have assumed the risk that caused their injury.

For someone to have assumed the risks involved in attending a given event, they must be able to foresee the risk in question. People going to a baseball game can foresee the risk of foul balls. People sitting courtside at a basketball game can foresee the risk of a player falling out of bounds. Chunks of metal flying off of monster trucks, however, may be a different question. Further, even if the agreement says all risks are assumed, you do not assume the risk of someone else's negligence, recklessness or malicious intent causing you an injury.

And when the injury happens to a child, such as Sebastian Hizey, such waivers can be meaningless. Children cannot legally waive their rights and adults can't waive such rights for them.

In the latest in the string of grim news coming from retailers across the nation, Home Depot has announced that 7,000 jobs will be cut and four dozen stores closed. The cuts constitute 2% of its total workforce, and the shut-downs involve the company's high-end EXPO stores, YardBIRDS stores, Design Center stores, and a bath remodeling business known as HD Bath.

CNN Money quoted a statement by Home Depot's CEO:

"Exiting our EXPO business is a difficult decision, particularly given the hard work and dedication of our associates in that business and the support of our loyal customers," Home Depot CEO Frank Blake said in a statement. "At the same time, it is a necessary decision that will strengthen our core Home Depot business."

Many other retailers are facing similar struggles during the recession. Of note, Circuit City announced the closure of all its stores as its bankruptcy turned to liquidation and last week high-end kitchen and home retailer Williams-Sonoma announced job cuts.

The chief investment officer with McQueen, Ball & Associates commented on the perspective of companies these days:

"'Home Depot's news really reflects what is going on at corporations. Companies have to cut expenses and focus on where they think consumer spending is going to be,' said Bill Schultz, chief investment officer with McQueen, Ball & Associates...

'We really need a turn in the housing market to turn the situation around for Home Depot, Lowe's and plenty of other retailers,' he said. 'These retailers can't really control sales in this environment. So they have to cut back on expenses.'"

Unfortunately for the labor market, "expenses" often ends up meaning "jobs" when it comes to saving cash for companies. Joe Biden commented yesterday that the economy is "going to get worse before it gets better", but the unanswered questions likely on people's mind are just how much worse will it get, and how long before it gets better?

Top Court: Wrongfully-Convicted Man Cannot Sue Prosecutor

The U.S. Supreme Court on Monday ruled that a California man who was wrongfully convicted of murder may not pursue civil rights claims against the district attorney's office responsible for his prosecution, even if the DA's office failed to disclose key evidence related to the potentially false testimony of a jailhouse informant at trial.

In turning away former prisoner Thomas Goldstein's civil rights claims against members of the Los Angeles County District Attorney's office, the nation's top court on Monday unanimously held that a prosecutor's "absolute immunity" extends to claims that the office failed to properly train or supervise prosecutors, and failed to establish an information system containing potential impeachment material about informants. Goldstein had claimed that members of the district attorney's office failed to disclose evidence that might have been used to descredit the testimony of a jailhouse informant during Goldstein's 1980 murder trial in Los Angeles County. Goldstein spent 24 years in prison before his murder conviction was overturned. Monday's U.S. Supreme Court decision overruled a California federal appeals court holding that had allowed the case to proceed.

Flight 1549 Hudson Crash Suits Governed by Maritime Law?

Of the many questions following last week's miraculous crash landing of U.S. Airways flight 1549 into the Hudson River, one is which laws will govern any lawsuits resulting from the crash. Some legal experts argue that federal maritime law will apply.

John Hession, a Manhattan maritime attorney told Newsday that maritime law would apply because after the Airbus A320 crashed into the Hudson, "it ceases to fly and starts to float, and it becomes a vessel, and a lifesaving vessel." Federal maritime law (or admiralty law) covers public navigable waters, including navigable streams, rivers and lakes. Hession, who plans to meet with multiple passenger from the flight, said that maritime law generally offers victims higher damage awards.

"Pilot's pilot" Chesley "Sulley" Sullenberger, along with his crew, has received enormous kudos and thanks for the the emergency landing into the Hudson. All passengers and crew members survived. Sullenberger even drew praise from President Obama. New York Daily News reports that Obama invited Sullenberger and his family to join the inaugural festivites and spend time with the Obama family. President Obama is quoted as saying, "[i]t made me think, if everybody did their job, whatever that job was, as well as that pilot did his job, we'd be in pretty good shape."

However, Newsday cites a North Carolina aviation attorney as saying that a number of the passengers suffered physical and psychological injuries, which reportedly can include "pre-impact terror."

Billionaire Henry T. Nicholas III, the co-founder of Irvine, California-based computer chip maker Broadcom accused his ex-wife Stacey Nicholas of "character assassination" in her attempts to expel him as co-trustee of their family holdings.

The L.A. Times reports that, in a November probate court filing, Stacey claimed her ex-husband "should be removed as a trustee for allegedly squandering $60 million from their fortune on personal indulgences, having her tailed by detectives wearing gorilla masks and threatening her life." This would seem like something out of a movie, but then again, this isn't the first time strange allegations have been thrown at the former Broadcom founder. In addition to facing securities fraud and conspiracy charges related to his company, in June of 2008 Nicholas III was indicted on drug, sex and fraud charges involving allegations of:

"...feeding ecstasy to unwitting business associates, hosting orgies at a private drugs warehouse and building a secret party lair under his mansion that even his wife knew nothing about."

Nevertheless, Henry Nicholas claims the attempt to oust him as co-trustee was filled with "outrageous falsehoods" by his ex-wife, including "misrepresenting herself as unable to meet her expenses when she had spent more than $100 million in the last two years." The pair's divorce court files have been sealed, which Henry Nicholas' attorneys say explains why Stacey turned to the probate court to air the dirty laundry.

A Kentucky high school football coach has been indicted for reckless homicide in the heat stroke related death of one of his players. While private litigation often follows heat related sports deaths, the criminal charge against coach Stinson is rare.

The AP reports that Thursday a grand jury indicted Pleasure Ridge Park High School first year coach David Jason Stinson for the reckless homicide of 15 year old sophomore Max Gilpin. Gilpin collapsed at football practice last August 20, a day with 94 degree heat index. He reportedly suffered a heat stroke, registering a body temperature of 107 degrees, and passed away three days later.

When athletes suffer heat related deaths, families of the deceased often sue coaches, teams or schools for wrongful death. Such civil suits for money damages claim that the action or inaction of the defendant caused the death of another. Negligence, recklessness, or intentional conduct can be the basis for liability. In fact, Gilpin's family has sued coach Stinson and five assistant coaches. They reportedly allege negligence and reckless disregard by the coaches.

What has drawn attention in coach Stinson's case is the criminal indictment. The lowest level of homicide states punish is typically either grossly negligent homicide or reckless homicide. Regarding Kentucky's reckless homicide charge, University of Kentucky criminal law professor Andrea Dennis told WSJ's Law Blog that someone acts recklessly "when he fails to perceive a substantial and unjustifiable risk that the result will occur." 

While MSNBC reports allegations that coaches denied players water breaks, the full facts surrounding the tragedy have not yet emerged. What the grand jury saw, however, was enough for it to return an indictment against coach Stinson.

As reported by MSNBC, the prosecutor said that "a reasonable person should have understood that this result could happen, fails to perceive that and prevent the end result. That's the level of proof we will have to go at. ... I made no recommendation [on the indictment]. We put it in front of the grand jury -- told them what we saw as the facts and they made their decision."

High school football programs will no doubt be watching how the case plays out. As ESPN columnist Pat Ford told Louisville NBC Affiliate Wave 3, "... coaches nationwide will be watching and seeing what happens and how it may affect them and how they do their jobs." 

Many people might think of the Playboy Mansion as the ultimate "bachelor pad". This image might take a slight blow, as Fox News reports that Hugh Hefner's estranged wife, Kimberly Conrad, recently showed up for one of Hefner's "female-frenzied movie nights", departing from her practice of only showing up on Tuesday "Family Nights" when other bunnies aren't around. Kimberly Conrad and Hefner married in 1989 and have two teenage sons together, and while they separated ten years later, the pair have never divorced. In fact, an earlier interview with Kimberley Conrad indicated that she and their two children "live next to the Playboy mansion in a $7 million home purchased by the Playboy mogul to keep them close."

Although Hef and Conrad might not technically be divorced, their somewhat unusual circumstances bring up an opportunity to highlight a newer area of family law, that of "collaborative divorce". Divorces sometimes end up being lengthy, expensive, and painful processes, often compared to wars. On the other hand, some divorces are entirely amicable, with the parties just needing attorneys to draw up the paperwork to sign so as to move on with their lives.

Collaborative divorce is a process that best applies to the grey area in between such amicable and heated divorces. Essentially, both parties agree that they will seek solutions to the issues they are facing by working together outside of court, rather than against each other as adversaries. The attorneys in the process are specially trained for collaborative divorces, and the process involves meetings of the parties and their attorneys to iron out key differences in a way that can make for less stress and expense. Once the differences are resolved via the meetings, a settlement agreement can be written up beforehand, which can vastly simplify the legal process.

Finally, just in case Hugh Hefner's top "bachelor" status might be considered at all threatened by any of this news, the same report should dispel any such doubts, as it looks like Hef now has a new "number one girlfriend" that has moved into the master bedroom.

New 'Downadup' Worm Infecting Millions of Computers

A new computer worm is rearing its ugly head this week, and cybersecurity experts are calling it the biggest threat to personal and business computers in years. So, what is it? And what steps can you take to best protect your computer?

The "Downadup" or "Conficker" worm has infected as many as one in 16 personal computers worldwide, and the security of up to 33 percent of computers and devices has been compromised, according to Computerworld Magazine. The worm takes advantage of a Microsoft Windows service vulnerability (MS08-067), for which Microsoft released a fix-it patch in October, PCWorld reports. The Downadup worm "spreads through USB devices like USB drives or MP3 players. The Windows option menu that appears after inserting the USB device will disguise the option to run the program as the option to open the folder. Open the file and release the worm," according to PCWorld.

Computerworld advises consumers to take a number of steps to protect against the Downadup worm, including downloading Microsoft patch MS08-067, checking systems and changing settings to make sure that Microsoft patches and updates are automatically installed, and "verify[ing] that the patch has been installed by bringing up Windows Update, then clicking 'Review your update history' and looking for a security update labeled as 'KB958644'."

Former French President Jacques Chirac was bitten by his own dog that was reportedly being treated for "depression". According to the Fox News story, this was no little nip to cover with a band-aid, either, as it appears Chirac was "rushed to a hospital". Jacques Chirac's wife, Bernadette, said that their white Maltese poodle, perhaps appropriately named "Sumo", has a history of frenzied fits and became increasingly prone to making "vicious, unprovoked attacks" despite receiving treatment with anti-depressants.

The story elaborates that:

"Mrs. Chirac, 74, did not reveal where the former president was bitten, but said, "the dog went for him for no apparent reason."

'We were aware the animal was unpredictable and is being treated with pills for depression. My husband was bitten quite badly but he is certain to make a full recovery in weeks.'"

Although French law might differ on this point, in the United States owning a dog with a history of biting humans leaves the owner completely liable for significant damages, perhaps even punitive damages, in the event their dog ends up biting someone. For that matter, many states impose strict liability on an owner for dog bites, even if they had absolutely no knowledge of the dog's viciousness.

Although Chirac and his wife are clearly not keeping their poodle's vicious tendencies a secret, often when people suffer dog bites they have no idea whether the dog at issue had any history of biting or was already considered "vicious". Some common factors that can be used to demonstrate an owner knew or should have known of his or her animal's vicious propensities are:

- the breed and size of the dog
- the purpose for which the dog is kept
- the dog has a history of fighting with other animals
- warning sign(s) on the owner's premises
- the owner has given warnings to other strangers about the dog

Below are some more helpful links regarding dog bites and laws.

A federal court ruled Wednesday that Illinois' law requiring a moment of silence in the state's public schools is unconstitutional. The AP reported the case was brought by atheist talk show host Rob Sherman and his daughter, high school student Dawn Sherman, who challenged the law which requires students to either pray silently or reflect on the anticipated activities for the day.

Someone looking at the issue for the first time might understandably be a bit confused. After all, how can requiring kids to say nothing be unconstitutional? Silence is encouraged and can even be mandatory in many other places, such as a courtroom. The answer in these types of cases lies in the Establishment Clause of the U.S. Constitution. Although most people have heard about the principle of the "separation of church and state", what's really being talked about is the First Amendment's Establishment and Free Exercise Clauses, that state:

"Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof."

It should be noted that different laws or different courts might mean entirely opposite results in these kinds of cases. Just last year, a Texas law allowing children to "reflect, pray, meditate or engage in any other silent activities" for one minute at the beginning of each school day was upheld by a court.

So what's the deal? How can similar laws end up getting different treatment by courts? The test used by courts in these kinds of cases is that a law will be constitutional under the Establishment Clause if it:

1) has a secular (primarily non-religious) legislative purpose;
2) has a principle or primary effect that neither advances nor inhibits religion; and
3) does not foster an excessive government entanglement with religion.

In the Texas case, the judge found that the "the primary effect of the statute is to institute a moment of silence, not to advance or inhibit religion". In contrast, in the Illinois case, the judge found that "[t]he statute is a subtle effort to force students at impressionable ages to contemplate religion." A notable distinction is that the Texas law allowed students to engage in "any other silent activities", whereas the Illinois statute only gave students and teachers two options for use of the silent time. When it comes to prayer in school, sometimes it comes down to these very close margins to find a law valid or not.

No Same Sex Marriage in Texas, but What about Divorce?

Yesterday, a Dallas man filed what is believed to be the first same sex divorce petition in Texas. The couple was married in Massachusetts in 2006, but now lives in Texas. The case poses a question to the Texas court which has become increasingly common: will states that don't recognize gay marriage allow same sex divorces? If not, how can these couples legally split if they no longer live where they were married?

Like many states, Texas law does not recognize same sex marriage rights. Texas' constitution defines marriage as being only between one man and one woman.

Like most, if not all states, Massachusetts has a residency requirement for getting a divorce. Typically, if you move to a new state and later decide to divorce, you don't have to move back to the state where you married. This is because you can get a divorce through the courts of your new state. But, what if the marriage you want to end is to someone of the same gender?

As attorney Peter Schulte told the Dallas Voice, yesterday he filed his client's petition for divorce in a Dallas County District Court. The question that court now faces has already been put to courts in New York, Rhode Island and Oklahoma.

In New York, where courts have recognized same sex marriages from places where they are legal, divorce was granted to a lesbian couple who had married in Canada, and jurisdiction has been granted to decide a divorce case involving a Massachusetts same sex marriage.

In Rhode Island, the state’s Supreme Court decided that Rhode Island courts cannot grant divorces to end same sex marriages from other states.

In Oklahoma, a Tulsa judge granted divorce to a lesbian couple without being aware of it. After learning that both members of the couple were women, the judge vacated his divorce decree. His decision was upheld by Oklahoma’s Supreme Court and in a subsequent hearing another Tulsa judge also refused the divorce.

In 2003, Texas faced a similar question regarding the end of civil unions from other states. Initially, a Beaumont judge granted divorce to end a civil union which originated in Vermont. The judge vacated his decision, however, after the Texas Attorney General requested that the court deny the divorce. The state argued in part that Texas courts could not grant a divorce because the couple was not married under Texas or Vermont law.

Now, Texas has a divorce petition where the couple is married under another state's laws. Should Texas courts decide they cannot grant same sex divorces, this couple will face the same legal limbo faced by a growing number of people in civil unions, domestic partnerships and same-sex marriages: how can you legally end it if you've moved?

Many of us have enjoyed sitting down for a good old round of Hasbro's board game Monopoly. If so, you might remember one of the game's cards giving us cash for a "bank error" in our favor. In the game, you're gifted some cash and go on your merry way toward more acquisitions and real estate joy. Real life, however, was not so kind to a Pennsylvania couple, Randy Pratt and his wife Melissa, after they ended up with $177,250 in their bank account instead of a $1,772.50 deposit.

Apparently, as reported by the AP, they proceeded to roll the dice and keep moving as they quietly withdrew the money, quit their jobs, and moved to Florida. For anyone that was wondering about the legality of bank error situations, the Pratts' case pretty much spells it out. The two now face charges of felony theft and conspiracy, despite Randy Pratt's claim that, after he told the bank about the error and was ignored, he considered the money to be "a gift from God."

If someone is faced with a similar situation, regardless of the size of the bank error at issue, they should notify the bank and not spend the money. Spending the "gifted" money just means that an individual might end up being in debt to the bank later. Of course, a bank is more likely to notice larger errors than small, but the law considers the money to be the bank's regardless of the amount involved. On the other hand, the more money is involved in a bank error, perhaps the greater the temptation is for the poor recipient.

To make matters worse for Randy Pratt, his wife told the court the two are now estranged. She's out free on unsecured bail, while he sits in county prison with bail set at $100,000. Although most married couples probably don't come into their money quite like this, it might be tough for a divorce court to handle the "assets" and "liabilities" in such a situation.

Obama Admin. Unveils New White House Website, Blog

Soon after President Barack Obama took the Presidential oath on Tuesday, his administration launched a new White House website and blog, continuing Mr. Obama's emphasis on online communication and involvement as a presidential candidate, as President-Elect, and now as the 44th President of the United States.

The revamped version of http://www.whitehouse.gov features a new White House Blog, which the new administration will use to further its stated goals of communication, transparency, and participation with the public. According to an early post on the new blog, "WhiteHouse.gov and the rest of the Administration's online programs will put citizens first," including by publishing "all non-emergency legislation to the website for five days, and allow[ing] the public to review and comment before the President signs it." Reuters reports that the new White House website also features "an online 'briefing room' and allows visitors to sign up for e-mail updates on major announcements and decisions, and to send in their own ideas."

Two 19-year-old Minnesota women, Brianna Marie Broitzman and Ashton Michelle Larson, were brought into court today to face charges of assault and other counts alleging they abused 15 nursing home residents. Prosecutors claim that over several months in early 2008 they physically, emotionally and sexually abused 15 residents who suffered from Alzheimer's disease, dementia or both.

Although the AP did not report on what might have motivated Broitzman and Larson, the economic downturn is only exacerbating the problem of elder abuse. The sad and frightening reality is that, as more individuals and families feel the effects of the recession, it could be the country's elder population that suffers serious consequences if families shift their time, finances, and attention to other pressing challenges such as increased mortgage payments, foreclosures, and joblessness.

In light of the rising concerns regarding elder abuse, it is important that the public be aware of the different types of elder abuse out there, as well as their warning signs. Here is a short list, along with some of the warning signs:

1) Physical or mental abuse - recurring or unexplained injuries; poorly treated injuries; poor hygiene for the patient or in the surroundings; malnutrition; depression, withdrawal, or a sudden fear of caregivers; a caregiver restricts access to, or isolates, the patient

2) Financial abuse or exploitation - a sudden lack of knowledge about financial matters; a refusal to make decisions on finances; unusual banking activity

3) Neglect or abandonment (and self-neglect) - unpaid regular bills (e.g. rent, utilities. etc.); weight loss; poor hygienic conditions; unmet medical needs (e.g. medications, equipment, etc.)

Anyone with an elder family member who notices some of the above signs should carefully supervise the situation and/or contact local authorities to alert them. The links below provide helpful information on the subject, including more signs of elder abuse.

After sitting in jail for ten years, Kathleen Hilton is finally set to stand trial for murder and arson in Massachusetts. She is alleged to have set fire to the apartment where here son's ex-girlfriend and their two children lived. In addition to issues regarding the length of time to get to trial, her case raises a question faced by many grandparents: what are grandparents' rights in child custody and visitation disputes?

As recently reported by the AP, Kathleen Hilton allegedly set the apartment ablaze in 1999 because her son's ex-girlfriend refused to allow him to visit their two children. The ex-girlfriend, Krystina Sutherland, and the two children escaped the fire. Five people in a family living above them, however, died. Hilton is on trial for five counts of second degree murder and one count of arson.

This family's child visitation dispute ended in an inferno. Though Kathleen Hilton allegedly set the fire because her son was denied visitation by the childrens' mother, many grandparents find themselves asking: what rights do grandparents have to get visitation rights to see their grandchildren?

The short answer is that it depends on your state. State laws currently run the spectrum in terms of allowing grandparents the right to seek child visitation. More permissive states such as New York and Hawaii allow grandparents to petition the court for visitation if it is in the best interest of the child, while states such as Florida and Pennsylvania require grandparents to have previously acted in a parental relationship with the child before asking the court for visitation. Additionally, some states require that the parents be divorcing (or divorced), or that at least one of the parents has died.

Visitation disputes are almost always highly emotional. Kathleen Hilton's case shows how badly things can turn out when visitation disputes go south. By informing themselves of their state laws on grandparent rights to seek visitation, grandparents involved in such disputes can most effectively secure a spot in the lives of their grandkids.

As noticed by millions in Washington D.C. and around the world, President Obama's oath of office featured a bit of a stumble yesterday. Chief Justice John Roberts misstated the oath, throwing off Obama, who completed the oath slightly differently than it is stated in the constitution. Now many have asked: should Obama retake the oath of office?

Article II of the Constitution states: "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"

Instead of "I do solemnly swear that I will faithfully execute the Office of President of the United States," Justice Roberts prompted Obama to swear that he would "execute the office of President to the United States faithfully," misplacing "faithfully" and using an errant preposition. Obama correctly said "President of the United States," but repeated Roberts' mistaken placement of "faithfully."

Though it seems a matter of minor misplaced words which basically say the same thing, numerous legal experts are suggesting that Obama take the oath of office again just to be safe. As noted by George Washington University Constitutional law professor Jonathan Turley, the Constitution puts the Presidential oath in quotations, indicating that exact wording is important.

Retaking the oath could happen quickly and in private. The San Francisco Chronicle notes that both presidents Calvin Coolidge and Chester Arthur retook their oaths in private. As Professor Turley told the Chronicle, Obama should probably retake the oath to take care of what he referred to as "the chief justice's version of a wardrobe malfunction."

According to CBS News, White House press secretary Robert Gibbs has said Obama has no plans to retake the oath.

As noted by the LA Time Opinion LA, Justice Roberts also included an extra bit of oath not present in the constitution, but which presidents have come to volunteer themselves: the "so help me God" part. Presidents typically tack this on at the end. Obama included it after prompting by Roberts, who asked "so help you God?"

In a unanimous opinion today, the Supreme Court ruled that people who suffer sex discrimination in schools can sue under both Title IX, a 1972 law prohibiting discrimination on gender, and a post-Civil war statute that prohibits a wider range of behavior.

The case was brought by Lisa and Robert Fitzgerald, the parents of a kindergarten student who was allegedly bullied by an older boy into lifting her skirt and other similar abuse. They claimed the school system in Massachusetts failed to properly respond to their complaints, and based their suit on both Title IX, and the post-Civil war statute, 42 U.S.C section 1983.

Although people might not be very familiar with the statute itself or by reference to its citation, federal civil rights suits are often brought under section 1983 because of the law's broad reach. The statute's relevant language is as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Title IX, on the other hand, is limited to gender discrimination at schools that receive federal money. More importantly, the Court found that the protections and relief offered by the two statutes was not the same and could vary from case to case. For this reason, and the fact that Congress did not appear to have a contrary intent for the laws, the Court ruled that both statutes can be used to sue in these types of cases and the Fitzgeralds will get a chance to proceed with some of their dismissed claims.

As a sidenote, this was actually not the only section 1983 civil rights case the Supreme Court dealt with today. The plaintiff in the other case, an individual who had been arrested for possessing and distributing methamphetamine, did not have as much luck as the Fitzgeralds. The Court found that police officers' warrantless entry into plaintiff Afton Callahan's home did not violate clearly established law at the time, and they were entitled to immunity from the lawsuit.

Tax Tip: Help for Financially Troubled Taxpayers

As the April 15th income tax return filing deadline approaches, if you're finding yourself facing financial problems that may make it difficult or impossible for you to meet your tax obligations, help is available from the Internal Revenue Service (IRS) and a number of national and state-level organizations that offer free or low-cost assistance for taxpayers.

According to a recent IRS News Release, "in addition to new credits, deductions and exclusions, the IRS is taking steps to help people who owe back taxes." This assistance includes added flexibility for taxpayers who miss payments, secondary review of "Offers in Compromise" on home values, postponement of collection actions, and expedited releases from tax levies. Learn more: IRS Help for Financially Distressed Taxpayers.

Earlier this month, the National Taxpayer Advocate's annual report to Congress urged the IRS to take steps to reduce the burden on financially struggling taxpayers, including making more use of collection alternatives for taxpayers facing financial hardship, and protecting lower-income Social Security recipients from burdensome tax levies.

With foreclosures and evictions booming, it's only natural that landlords and tenants try to maximize the number of people fitting into rental units. This can make it tempting to quickly slap up an additional wall in order to rent out another bedrooms. As the legal fallout of a 2005 apartment fire in the New York shows, however, quick rental conversions can be illegal and can lead to life-threatening dangers.

In 2005, a fire ripped through a Bronx, New York apartment complex. As reported by the AP, the fire started in an apartment where the tenant had added two bedrooms to his family's three bedroom home in order to rent them out. The fire spread to another apartment where extra rooms had also been added. Firefighters became trapped, and left with no other choice, jumped out a fourth story window. Two died. Four others sustained injuries. Now, the building's owner, its former owner and two tenants are being tried on manslaughter charges.

Slapping up a temporary wall, or what might seem a safe pressurized wall, to make an extra room may seem like no big deal. You might think it's a building code violation at most. However, disasters like the fire that killed two firefighters in the Bronx show that quick modifications to a rental unit or home can lead to huge potential liability for the owner and for the tenant.

Tight financial times push many to creative ways to trim housing costs. Landlords and tenants, however, must pay careful attention to what sorts of modifications are allowed, and whether permits are required. What might seem like red tape can not only keep rental units code compliant, but can also save lives and prevent huge landlord tenant liabilities.

Massachusetts Senator Edward Kennedy collapsed Tuesday afternoon during an inaugural luncheon for President Barack Obama. A CNN report indicated that he suffered a seizure and was taken to a hospital by paramedics. Although the exact cause of the seizure is unknown this early on, people might be wondering what happens in the event a Senator is stricken by a sudden illness and is left unable to perform their duties.

This isn't the first time the issue has come up, as Senator Kennedy has had prior health ailments stemming from a malignant brain tumor. Also, about two years ago, North Dakota Senator Tim Johnson suffered what was first (wrongly) described as a stroke, but turned out to be bleeding in the brain caused by a congenital problem. At the time, many questions were raised regarding whether he would be able to continue his work as a Senator, in light of the 1-vote majority held by Democrats in the Senate. A Senate Historian cleared up any doubts by pointing to the Senate rules, under which a senator can retain their seat even if incapacitated, unable to vote, and not even able to show up to work. Further, the Senate does not have the power to forcefully remove a Senator unless they committed a crime.

This is in contrast to how the situation might be treated by someone's family in the event a loved one is stricken with a sudden, incapacitating illness. The law makes provisions for the use of conservatorships or guardianships, which allows for a family member to take over the incapacitated individual's affairs and finances in such situations.


With people's retirement investments taking a hit in the financial crisis and recession, it's a good time to think about protecting what will be left after one's death. One way to do so is to plan ahead in order to reduce future probate cost, or even avoid probate altogether.

Probate is the legal process for distributing someone's property after they die. When a person dies, hopefully they have left a valid will. Probate rules vary by state, but in short, probate is the process through which property of the dead person is collected, certain debts are paid by the estate, and then property of the estate is distributed. Costs associated with going through probate court include court fees, executor fees, attorney fees, and sometimes appraiser fees or additional costs.

To help beneficiaries receive more of the property passed on, and receive it more quickly, there are methods to keep property from having to go through the probate process. Three primary methods are designating beneficiaries for certain assets, joint ownership of property with rights of survivorship, and putting property into revocable living trusts.

Employing joint ownership or a revocable living trust to avoid probate costs can be a detailed but worthwhile endeavor.

One simple step people can make to reduce probate costs is designate beneficiaries (and keep designations updated) for bank accounts, investment accounts and insurance policies. Retirement accounts, like an IRA or a 401 K, do not go through probate when they have a designated beneficiary. The same goes for life insurance policies. Additionally, payable on death (POD) accounts and transfer on death (TOD) accounts allow the contents of personal bank accounts or investment accounts to go straight to a designated beneficiary. Some states allow transfer on death auto registrations, preventing your car from having to go through probate.

By keeping your designation of beneficiaries updated, you can help your beneficiaries receive more of what you leave them and receive it more quickly.

Barack Obama's historic inauguration today as president of the United States was the scene of an unprecedented celebration by a crowd of more than 1 million. However, amidst all the jubilation, there have been some sobering reminders of the hazards involving large masses of people, as well as very cold weather conditions. According to an AP story, "between 4 a.m. and 10 a.m., the fire department responded to more than 60 calls from people falling down or complaining of the cold. About 20 people have been hospitalized." In another incident, rail stations downtown closed for about an hour after a woman fell on the tracks. She was hospitalized with non-life-threatening injuries, and although it was unclear how she fell, the city's subways have been extremely crowded throughout the weekend.

These types of incidents might make one wonder what happens when someone goes to these kinds of events, suffers an injury, and ends up having to pay medical bills and related costs. Is there anything the law provides for such individuals?

The legal theory of "premises liability" holds owners and occupiers of property legally responsible for accidents and injuries that occur on such property. However, the liability of property owners will vary depending on the legal rules and principles in place in the state where the injury occurred. In some states, courts focus on the status of the injured visitor. For example, someone who's invited onto property, such as a store customer, will be given heightened protections, as compared to a trespasser or a social guest.

Meanwhile, courts in other states would focus on the condition of the property and the activities of both the owner and visitor. In general, these states impose an expectation that both the owner and visitor should exercise "reasonable" care as to the conditions of property and the visitor's activities. This does include a requirement that an owner inspect their property, identify dangerous conditions, and repair them.

Sometimes (as might be the case for these "inaugural injuries"), if a situation involves a fall on a public sidewalk or a subway station, the government might end up being the target of a premises liability suit. However, governments at the state and federal level, as well as their units have traditionally enjoyed immunity from lawsuit. Over the years, state and federal governments have been reducing their immunity, allowing certain types of lawsuits to proceed. The links below offer additional specific information on premises liability, defenses, and making claims against the government.

Tax Tip: Recordkeeping Becomes Key at Tax Time

You probably already keep records in your daily routine, including receipts and bank statements. When April 15th approaches and you start getting your income tax information together, these records and others become extremely important in preparing a complete and accurate tax return. The Internal Revenue Service (IRS) offers tips on recordkeeping for taxpayers: why you should keep records, what to keep, and for how long.

Keeping important records with an eye towards tax time can help you identify sources of taxable versus non-taxable income, keep track of expenses for which you might be able to claim a deduction, trace the basis of property ownership and improvements, and provide support for items reported on your tax return. The specific types of records you should keep include any documents related to: child support and alimony paid or received; business use of your home; losses from casualty and theft; education expenses; gambling winnings and losses; and moving expenses. Typically, you should plan on keeping these records for at least three years, but certain kinds of records should be kept longer. For complete information, read What Tax Records to Keep and Recordkeeping for Individuals from the IRS.

A federal appeals court today ruled against landowners who sued the federal government to recover for damages arising out of the huge 2003 Cedar Fire in San Diego. The fire originated in the Cleveland National Forest when a lost hunter apparently started a signal fire, which swiftly grew out of control and spread into other landowners' properties. By the time the Cedar Fire was contained, over 280,000 acres and 2,800 buildings had been destroyed, and 15 people had been killed. The damages were estimated to be in the range of $200 million, which is about what the landowners sued for.

A lower court had also ruled against the homeowners, reasoning that unless the lost hunter was acting as an agent for the government, the government could not have been the "cause" of the fire. Nevertheless, landowners appealed, claiming that the U.S. Forest Service's land management policies were to blame for the "taking" of their property without proper compensation.

The court was not sympathetic, however, noting that the Forest Service's policy was not "not one authorized action but a set of intertwined, authorized actions" by the government. It was not fair for landowners to "cherry-pick parts of the Forest Service policy which they argue have increased the risk of wildfire since 1911 without acknowledging that much of the Forest Service policy over the last century has been devoted to reducing the risk of wildfire."

Property owners should be aware that it is a significant challenge to be successful in these kinds of "takings" claims against the government, particularly when third parties get in the way of what otherwise might have been a closer case. Had a lightning strike started the fire instead of a reckless lost hunter, arguably the court might have been more sympathetic. On the other hand, "[f]ires are an unavoidable fact of life in Southern California" and the case illustrates the importance of obtaining proper insurance for disasters that are a very real risk.

Property owners should make sure that they inform themselves about the specific natural hazards in the area where they live, and then take proper steps to procure the right insurance coverage for their needs. It's not enough to just buy a policy, however, and property owners should make an accurate home inventory which will make it far easier for them to deal with their insurer in the event a disaster strikes. Below are some links to excellent Web resources regarding disaster preparedness and tips for obtaining the right insurance coverage.

Circuit City, the second largest electronics retailer in the U.S., has announced it must close all of its remaining stores and liquidate all remaining assets. It's death will reportedly mean the loss of more than 30,000 additional jobs. Circuit City will try to liquidate close to $2 billion of retail inventory by the end of March.

As reported by the AP, Circuit City was unable to find a deal to sell the company after declaring bankruptcy in an attempt to reorganize and salvage the company. It will close its remaining 567 stores, after having recently closed 155 stores. Liquidation begins immediately, andconsumers can expect to begin finding sale merchandise at Circuit City stores beginning Saturday.

With more retail (and other) closings predicted, many laid off workers wonder whether they have any legal protections. How much warning are they entitled to receive? Should they get any payment after layoffs with short or no warning?

Under federal law, the Worker Adjustment and Retraining Notification (WARN) Act is supposed to protect many employees of large companies from getting laid off without warning. The WARN Act requires many large employers to give 60 days notice of layoffs, or pay laid off workers up to the required notice period.

There are exceptions to WARN Act requirements, however, some off which the financial crisis has already highlighted. In particular, the "faltering company" exception allows companies to avoid 60 day notice of layoff requirements in situations where they are actively trying to find new capital or business to save the company, and reasonably believe that notifying their workers of looming layoffs would prevent them from finding new capital or business. That could be an argument made by many businesses scrambling to find money to stay afloat before they shut their doors.

Whether the WARN Act provides protections to many recently and soon-to-be laid off workers remains to be seen. A new Congress, along with states who have their own layoff warning laws, may be asked to improve warning protection laws for laid off workers. For example, the Labor and Employment Law Blog reports that starting February 1, 2009 a tougher New York WARN Act goes into effect.

American Amanda Knox and Raffaele Sollecito, her Italian former boyfriend, went on trial in Italy on Friday for the killing and sexual assault of British exchange student Meredith Kercher in 2007. As reported by CNN, many of the allegations in the case are disturbing. The prosecution graphically claims that Meredith Kercher died as a result of a "drug-fueled sex game" with the two defendants and Rudy Guede (who was already convicted and sentenced for her murder). In court papers, the prosecutors detail that Sollecito held Kercher by her wrists while Knox "poked at her with a knife" and Guede sexually assaulted her.

In light of these kinds of claims and the further details that are likely to surface during testimony, the presiding judge in the case barred cameras from the courtroom on Friday and indicated he might completely close portions of the trial dealing with the most graphic sexual assault allegations. Indeed, Meredith Kercher's family asked that the trial be completely closed, which is an option Italian law allows in cases dealing with sexual assault.

At first glance, many people in the U.S. might not give that decision much of a second thought. However, by the same token, many neither know much about, nor hear much about, their constitutional right to a public trial which is guaranteed under the Sixth Amendment. Despite the public's general fascination with tabloid-headlines material, many are probably wondering why it's not a given that such a trial would be closed, especially when considering the victim's family which ends up having to hear and re-hear painful testimony in detail.

The requirement of open trials helps to protect the fairness and accuracy of judicial proceedings, specifically by providing a public demonstration of the workings of a trial, discouraging perjury or misconduct by participants, and preventing decisions based on secret bias or partiality. The media and public serve an important function in this "filter" which oversees and reports on trials.

One well-publicized example of how American courts weigh the right to an open trial was provided by the case of Mychal Bell of the "Jena 6" trials. In the racially-charged Louisiana case, a judge ended up ruling that the public and news media should have total access to all proceedings involving the teen, whose prosecution had been shrouded in secrecy on orders of the trial judge (based on the fact he was a juvenile). Had that case remained closed and secret, the outcome for the defendant might have been entirely different and public awareness of the issues raised by the case may have remained concealed.

Although Italian law might end up treating the Amanda Knox case entirely differently, the court there will still have to weigh the various competing interests to find the best way of ensuring a fair trial for the defendants and meeting the ends of justice.

Tax Tip: Choosing a Tax Preparer or Tax Attorney

Even though the April 15 tax filing deadline is still months away, it's always a good idea to get a jump on tax season. And the Internal Revenue Service (IRS) is sending a friendly reminder that taxpayers are the ones legally responsible for what's on their tax returns, even if the return is prepared by someone else. So, the IRS is offering helpful hints on finding a qualified tax professional to help you get your return prepared and filed.

When choosing a tax preparation service, the IRS advises taxpayers to find out what the charges will be up front; use only tax professionals that will sign your return and give you a copy for your records; and ask others who have used the tax professional whether they were satisfied with the service they received (See "Read This Before Choosing a Tax Preparer" from the IRS). And if you're having trouble deciding whether you need the help of a tax attorney or an accountant, FindLaw offers tips on choosing between these two types of professional services, to fit your unique tax needs.

Irvine, California-based online real estate company, RealtyTrac, issued a report on Thursday indicating that California's foreclosure activity jumped 81 percent in 2008, with one in every 54 households getting at least one filing notice. As reported by Reuters, the figure suggests that various state laws and private programs to slow the process have been ineffective.

"State legislation that slowed down the onset of new foreclosure activity clearly had an effect on fourth-quarter numbers overall, but that effect appears to have worn off by December," said James Saccacio, chief executive of RealtyTrac. "The recent California law, much like its predecessors in Massachusetts and Maryland, appears to have done little more than delay the inevitable foreclosure proceedings for thousands of homeowners."

Last month news reports indicated that the federal "Hope for Homeowners" program was also a flop. However, despite the glum news, there was a silver lining offered in the news, which was based on falling home loan rates in January. The drop in rates to below 5 percent has been brought on by the promise of massive government purchases of mortgage bonds. As a result, requests to refinance have risen, which could cut borrowing costs and help keep some borrowers in their homes.

The last resort of bankruptcy may soon also become a tool to combat foreclosure. Banks and the building industry have reportedly been working together with Senators on "cramdown" legislation affecting bankruptcy judges' powers regarding mortgage loan modifications. The rule change would give bankruptcy judges the power to change repayment terms for certain homeowners who declare bankruptcy. Below are some helpful links to information regarding foreclosures, the foreclosure process, recent legislation, and foreclosure laws by state.

U.S. Airways Plane Crashes into Hudson River

US Airways Flight 1549 crashed into the frigid Hudson River this afternoon. The flight crashed shortly after takeoff from New York's LaGuardia Airport, en route to Charlotte, North Carolina.



The plane, an Airbus A320, went down moments after its 3:26pm EST takeoff. ABC News reports that New York City firefighters and passenger ferries responded to the crashed plane. It remains unclear whether there are any injuries to the five crew members or 146 passengers aboard. New York City police report that the recue effort is ongoing. Commuter boats are reported to have helped fish crash victims from the 42 degree water and to have rescued passengers standing on the plane's wings.

According to the Federal Aviation Administration, the pilot reported hitting a bird shortly before the crash. The AP reports that the plane struck one or more birds, which disabled two of the planes engines.

CNN reports that all crew and passengers are off the sinking plane and alive.

Today, Eli Lilly & Co. (Lilly) pled guilty to illegally marketing the antipsychotic drug Zyprexa and agreed to pay $1.42 billion to settle a suit filed by federal prosecutors in a Pennsylvania federal court. As reported by the AP, Lilly has already spent roughly $1.2 billion to resolve over 32,000 Zypreza related claims.

Like many previous Zyprexa lawsuits, today's case centered on Lilly's marketing of Zyprexa. Zyprexa is FDA approved for use treating adults suffering from schizophrenia or bipolar disorder. Doctors are, at times, allowed to prescribe medications for uses outside their specific FDA approval. Drug makers, however, are not allowed to market medicines toward such "off label" uses. Unfortunately for Lilly, marketing drugs at off label uses violates the Federal Food, Drug and Cosmetic Act.

According to allegations in the case settled today, Lilly marketed Zyprexa toward treatment of a host of off label uses. As detailed in the DOJ's press release, Lilly's sales force long promoted use of Zyprexa to treat elderly patients with dementia, Alzheimer's, agitation, aggression, hostility, depression, or generalized sleep disorder. The FDA approved Zyprexa for none of these conditions, nor for any condition prevalent in elderly patients. Nonetheless, with the sales slogan "5 at 5," Lilly salespeople allegedly promoted 5 milligrams of Zyprexa at 5pm to help elderly patients sleep.

Through its "Viva Zyprexa" campaign, Lilly allegedly instructed its sales force to recommend that primary care physicians prescribe Zyprexa to adults suffering symptoms such as agitation, aggression, hostility, mood or sleep disturbances, or depression. In addition to these uses being off label, primary care physicians rarely manage the antipsychotic medications of patients treated for schizophrenia or bipolar disorder, the uses for which Zyprexa is actually approved.

Of the $1.42 billion from today's announced settlement, $800 million will go to settle federal and state civil suits and $615 million to resolve the federal government's criminal probe. The DOJ claims this is the largest amount to be paid by a single defendant in the department's history. In October, Lilly agreed to pay $62 million to settle Zyprexa suits brought by 32 states and the District of Columbia. In that case, Lilly allegedly marketed Zyprexa for unapproved uses on children and elderly patient with dementia.

In today's announced settlement, Lilly also agreed to resolve civil investigations launched by Medicaid fraud control units in 30 states. These investigations concern rebate agreements with pharmacy benefits managers relating to Lilly drugs including Zyprexa.

Bloomberg reports that Lilly still faces suits by 12 states alleging improper marketing of Zyprexa and withholding information about its side effects.

A World Health Organization (WHO) team has published a study indicating that implementing a simple surgery safety checklist at hospitals would greatly reduce accidental deaths during surgery. The 19-item surgical safety checklist was designed by the WHO to improve team communication and consistency of care in order to reduce complications and deaths associated with surgery.

The team implemented the checklist at eight hospitals, four of which were in high-income nations, while the other four were in low- or middle-income countries. The study showed a significant decrease in the death rate from 1.5 percent before the checklist was introduced to 0.8 percent afterward. The results were dramatic in the lower income nations, while less so in the high-income nations, but the AP reports that countries encompassing the entire spectrum are implementing the checklist such as Ireland, Jordan, the Philippines and Britain. In the United States, the Joint Commission, which accredits and sets standards for hospitals, is considering adopting more of the steps too.

Although hospitals' initial concern might be how costly or time intensive implementing the checklist might be, the study indicated that all of the sites were able to introduce the checklist in a fairly short period of time and that only two of the safety measures in the checklist are relatively costly. Furthermore, hospitals here in the United States could look at the checklist as a cost-saving measure in terms of avoiding medical malpractice cases.

Accidental injuries and deaths from surgery, which we often hear about in the news when a surgical tool or sponge is left behind in a patient, are a major source of medical malpractice cases in the country. As a quick refresher, to establish medical negligence, a patient must establish:

1) They were injured;

2) The existence of a duty owed by the health care professional to the plaintiff (i.e., a doctor/patient relationship);

3) The applicable standard of care, and the health care professional's deviation from that standard;

4) A causal relationship between the professional's deviation from the standard of care and the patient's injury.

Once these are established, the injured patient must prove their "damages". Some damages, such as hospital bills or the costs of future care, might not be too difficult to quantify, but on the other hand, other costs to the victim can be difficult, if not impossible to put a value on. After all, how many people would be able to put a fair price on their overall health, on time lost in recovery, or on pain and suffering?

For this reason, sometimes victims in medical malpractice suits do not end up feeling that they've been "made whole" by a lawsuit and the money they end up with. Indeed, it's probably safe to assume that all parties involved in such cases would prefer to prevent the accidental injuries in the first place. If hospitals begin to implement the safety checklist, that could turn out be a fast and relatively inexpensive step towards valuable prevention.

Tax Laws: What's New for 2009?

Every new year brings new changes to the hundreds of pages of the Internal Revenue Code, the law that spells out what you can and cannot do in filing your federal income tax return in time for the April 15 deadline. Tax law changes are important for all filers to keep in mind, but can especially come in handy for parents, homeowners, students, and others looking to save money -- by taking advantage of new and updated tax deductions and tax credits.

So, what do you need to know for 2009 (tax year 2008)? FindLaw's new "Tax Laws: What's New for 2009?" section provides up-to-date highlights of key federal income tax law changes for individuals and families, and links to more information on these changes direct from the Internal Revenue Service (IRS) -- including an increase in the standard deduction for most taypayers, changes in the value of each personal and dependency exemption, a new first-time homebuyer credit, changes to contribution limits for IRAs and other retirement plans, and much more: Tax Laws: See What's New for 2009.

Johannes Mehserle, the former Bay Area Rapid Transit (BART) police officer who shot and killed passenger Oscar Grant on New Year's Day has been arrested and charged with murder. If convicted, he could face life in prison. Alameda County prosecutors made the rare move of charging the former police officer with murder for an on-duty incident, rather than charging him with a lesser homicide offence such as manslaughter.

As reported by the San Jose Mercury News, Mehserle waived extradition from Nevada, after cooperating with arrest in the Zephyr Cove community near Lake Tahoe. Wednesday, he was transferred to Santa Rita jail near Oakland and charged by District Attorney Tom Orloff in an Alameda County court with one count of murder.

As the San Francisco Chronicle reports, the charge comes after Mehserle refused to cooperate with BART's investigation into the incident. Though other officers provided statements after the shooting, Mesherle refused, and subsequently resigned from BART before being probed by its investigators.

As legal experts have noted, police officers involved in on-duty killings are rarely, if ever, charged with murder. Prosecutors choosing charges for offenses in which someone dies typically have four options: involuntary manslaughter, voluntary manslaughter, first degree murder or second degree murder.

Involuntary manslaughter is an unintentional killing that results from recklessness or criminal negligence. Voluntary manslaughter involves an intentional killing without prior plan to kill, in which the circumstances would have caused a reasonable person to become emotionally or mentally disturbed (such as some "heat of passion" killings).

The complaint against Mehserle does not indicate whether he will be tried for first or second degree murder. Under California law, first degree murder must be premeditated and carries a sentence of 25 years to life in prison. Second degree murder is still intentional, but is unplanned and carries a 15 year to life sentence.

Video of the incident, some captured via cell phone and some yet unseen by the public, played a key role in the decision to charge Mehserle with murder. According to court filings, video clearly indicates that both of Oscar Grant's hands were behind his back when Mehserle shot him while restraining Grant on the ground. District Attorney Orloff stated that no evidence reviewed by his office indicated that the shooting was justified. Orloff stated that the video evidence and Mehserle's refusal to shed any light on what happened both factored into the decision to charge Mehserle with murder.

There's few things quite as frustrating as trying to haggle with an insurer over reimbursement for the costs of medical care. New York scored one for the little guys yesterday when it secured a settlement with UnitedHealth Group, one of the nation's largest insurers, forcing the company to close its Ingenix billing database that health insurers have been using for years to determine payment rates for patients who have used an out-of-network doctor.

As reported by the New York Times, a statement by the New York's Attorney General, Andrew Cuomo, claimed that the industry had engaged in "a scheme to defraud consumers" by systematically underpaying the nation's patients by hundreds of millions of dollars over the last decade. One example given was:

"The patient might receive a doctor's bill for $100, for example, and expect the insurer to pay at least $70. But if the insurance database says that doctor bill should have been only $72, based on local rates, the patient might get back less than $55."

Allegedly, the data used by the Ingenix system was ripping consumers off by understating the "reasonable and customary" rates of medical care by up to 28 percent. The settlement reached with the state requires the creation of a new, independent database to be run by a university. However, the settlement leaves unaddressed the bigger questions of whether there was actually underpayment to doctors and whether consumers were short-changed, and litigation on those issues continues.

So what is there to be done if, despite these impending changes, you feel your insurer is "lowballing" you for the costs of your medical care? It's going to depend on the circumstances of each case, but generally, insurers have an obligation to deal with their insureds "fairly" and in "good faith". Now this doesn't mean the insurer has to go ahead and pay up on any and all claims made, but it does mean the insurer has to at least:

(1) Process an insured's claim in a timely and reasonable manner; and

(2) Address the claim fairly, in line with the terms of the applicable policy.

Unfortunately, as anyone who has sat down and tried to read the arcane and sometimes lengthy language of their policy can attest to, it's not hard for insurers to take a wide variety of positions on what is "fair" and "reasonable" without crossing the line into bad faith. However, the creation of a new, independent database is a step in the right direction toward making the process a little more transparent for the public, and some of the numbers won't lie in the hands of an "interested" party.

In the past two days, the US Supreme Court has issued opinions in four criminal cases. The decisions affect issues including evidence at trial, judges' power in consecutive sentencing cases, possible punishments for not showing up to jail, and when the clock starts ticking to file a federal habeas corpus petition to get out of prison.

In Herring v. US, the Court was talking about evidence, particularly the "exclusionary rule." In short, the exclusionary rule, rooted in Fourth Amendment protections, forbids criminal courts from considering evidence acquired in an unreasonable search and seizure. Chief Supreme Court Justice Roberts wrote the Court's opinion. It held that evidence need not be suppressed even if it was found in a search resulting from bad information from law enforcement in a neighboring county that the suspect had an active felony warrant. According to the Court, if the search results from negligent, rather than reckless or intentional error by another police employee, the evidence found can be considered.

In Oregon v. Ice, the Supreme Court addressed sentencing. It ruled that states can give their judges the power to decide whether to impose consecutive or concurrent sentences for multiple offenses, based on facts not found by the jury. When a court convicts a defendant of multiple discrete offenses, it must be decided whether the sentences for those crimes should run one after another (consecutively) or at the same time (concurrently). In some states, judges alone decide the issue. In others, sentences are presumed to be consecutive unless the judge finds reason to make them concurrent. And in some states such as Oregon, state laws provide a list of facts which the judge must find in order to impose consecutive sentences. Justice Ginzburg wrote for the Court’s majority, stating that none of these approaches violates the Sixth Amendment, and that juries need not be involved in the decision.

In Chambers v. US, the Court clarified potential impact of failing to report for penal confinement if you are later convicted of being a felon with a firearm. Under the Armed Career Criminal Act, an individual convicted of being a felon in possession of a firearm gets a mandatory 15 year sentence if they have three prior convictions for serious drug offenses, violent felonies, or both. Federal prosecutors wanted to use a previous conviction for failing to show up to jail as one of Mr. Chambers "violent felonies." The Supreme Court said no in an opinion by Justice Alito.

In Jimenez v. Quarterman, the Court dealt with the window of time allowed for inmates to file petitions for habeas corpus under federal law. Federal law imposes a one year window, starting from the day one's judgment becomes final, to file for habeas corpus. One's judgment typically becomes final at the end of any appeals process. Here, a state court allowed the inmate to file a late appeal of his conviction. Through Justice Thomas' opinion, the court held that when a fresh appeal is granted, the timeframe for filing for federal habeas corpus relief doesn’t begin until the end of the new appeal process.

Veterans charged with certain criminal offenses in Madison County, Illinois can look forward to soon having a court staffed with veterans to handle their cases. The AP reported that the suburban St. Louis county is hoping to launch the new court, which will be run entirely by volunteers, by the end of next month or early March. Veterans interested in having their cases handled by the new court will be doing so entirely by their own choice, and it's not yet clear how many vets will be taking part.

However, having a court staffed with war vets does not mean that such courts would automatically be sympathetic to the veteran parties. Instead, the goal of the court is to:

"...divert many of the veterans from the criminal courts to a program that, much like popular drug courts, will offer them treatment for underlying issues, perhaps sparing them a criminal conviction if they successfully complete the treatment."

Such a program acknowledges the particular and difficult circumstances faced by many veterans who turn to crime, ranging from drug or alcohol abuse to post-traumatic stress disorder (PTSD) and other physical or mental infirmities which underlie their crimes.

It should be noted that the courts being started up will deal only with military veterans charged with nonviolent crimes. These kinds of courts should not be confused with courts that handle veterans claims for disability and related issues. Any veteran interested in filing claims relating to their service-connected disability, for survivor benefits, or for other veterans benefits, should apply at their local Department of Veterans Affairs (VA) office. These claims are handled administratively, as opposed to the court system, although veterans do have resort to the court system if a decision is not made in their favor at the VA level.

These kinds of courts have been, or are being, formed in many other counties across the United States, as well. One court for veterans was slated to get started on Monday in Rochester, N.Y., that was modeled after one launched in Buffalo about a year ago, and similar courts are being considered in major Nevada and Pennsylvania counties, as well.

As reported by the AP, President-Elect Obama's chosen Treasury Secretary, Timothy Geithner, has run into bumps in his Senate confirmation process over previously unpaid taxes and employing an immigrant housekeeper who for a period lacked work papers. From 2001 to 2004, Mr. Geithner failed to pay self-employment taxes owed while he worked for the International Monetary Fund. He has since repaid the taxes, but whether the Senate agrees to expedite his confirmation remains uncertain.

Not so many people are up for confirmation to head the Treasury Department, which oversees the tax dollars we pay. Many, however, fall into the same category as Geithner found himself from 2001-2004: self-employed in eyes of the IRS and federal tax law.

Obviously, people who operate their own businesses as sole proprietorships are considered self-employed. But so are people who operate part-time business on the side of regular jobs, people who work as independent contractors, and people who work for certain forms of partnerships.

The IRS audits self-employed individuals at a much higher rate than regularly employed people. Two tips to remember if you will have to file as self-employed: 1) report all of your income; and 2) don't take deductions for items you didn't have to buy for the business.

Additionally, here is a quick guide to what the IRS looks for when auditing the self-employed.

Study: Vicks VapoRub Can Harm Children Under 2

Vicks VapoRub is a hugely popular topical medication used to relieve chest congestion and other symptoms of the common cold, but parents and caregivers should never apply Vicks to children under the age of 2, according to new pediatrics research published in the journal of the American College of Chest Physicians.

Because application of Vicks VapoRub can cause increased mucus production and inflammation of respiratory airways that are narrower in very young children, serious breathing problems can result. According to a Press Release from the American College of Chest Physicians, authors of the study "became interested in the effects of Vicks VapoRub on small children after they cared for an 18-month-old girl who developed severe respiratory distress after Vicks was put directly under her nose." The lead author of the study, Bruce K. Rubin, MD, a professor of pediatrics at Wake Forest University's Brenner Children's Hospital, declared: "I recommend never putting Vicks in, or under, the nose of anybody—adult or child. I also would follow the directions and never use it at all in children under age 2."

Only one letter removed from the innocuous "texting" everyone is familiar with, the word "sexting" has been popping up in various news stories lately. In its various forms, sexting is the transmission of suggestive material via text messages. Of course, there are wide degrees of suggestive material, but today six Pennsylvania teens were charged with child pornography after three girls sent nude or semi-nude cell phone pictures of themselves to three male classmates. Sexting is not rare, either, as a survey conducted by the nonprofit, National Campaign to Prevent Teen and Unplanned Pregnancy, indicates that 20 percent of teens aged 13-19 have sent or posted nude or semi-nude pictures or video of themselves. Another article discusses a study claiming that sexting is not viewed as a major issue, but the teens who are being charged with child porn and their parents would likely beg to differ.

Because texting allows for the transmission of images, unlike phone conversations, teens under the age of 18 are especially exposed to a number of legal consequences. When images taken on a cell phone unsurprisingly involve the teen, or their friends, and the images involve some form of nudity, the images can automatically be defined by law to constitute child pornography. As a result, the taking, sending, receiving, or distribution of such images can, under the letter of the law, constitute varying degrees of child pornography offenses that are punished harshly. Lawyers will argue that the laws were not written with the intent to pursue underage minors who take pictures of themselves and send them to their underage friends, but for now, the legal risks of sexting for all parties are clear as teens in New York, Alabama, and Wisconsin have been arrested, are facing, or have been convicted, on criminal charges.

Additionally, another serious side effect suffered by teens who send pictures of themselves is the likelihood that their pictures will end up posted all over the internet or distributed in another form. In the rapidly changing universe of a teen's life, it is not unusual for a teen to be in "luv 4ever" one day, and scorned the next. One NBC article related the story of a teen whose risqué pictures ended up being distributed around two or three different schools, which can be devastating to a teen's social life and development.

Parents should not only be aware of the widespread nature of sexting so that they can keep a close eye on inappropriate behavior, but they should be pro-active and make it a point to talk to their teens about the possible legal consequences. Unfortunately, teens often take discussions about legal consequences very lightly until it's too late, so it is equally important for parents to address the very real possibility, and even likelihood, that any embarrassing pictures could end up posted all over the place. Lastly, the survey link below has some great tips to help parents talk to their teens about these and other sex and technology issues.

Today the Department of Justice released a study reporting that 3.4 million Americans fell victim to stalkers in a one year span from 2005 to 2006. The report sheds light on the great number of stalking victims, characteristics of how they were stalked, and whether involvement of law enforcement proved effective.

Key findings in the report included:

  • About half of stalking victims experienced at least one unwanted contact per week;
  • 11% of victims said they had been stalked for 5 years or more;
  • Women were at far greater risk than men for stalking victimization; however, women and men were equally likely to experience harassment;
  • Nearly 75% of stalking victims knew the offender in some capacity;
  • Male and female stalking victims were equally likely to report it to the police;
  • Divorced or separated individuals were at highest risk of being stalked;
  • Approximately 25% of stalking victims reported some type of cyberstalking (83% of which reported stalking via e-mail, and 35% stalking via instant messaging); and
  • More than half of stalking victims lost 5 or more days of work for fear of safety or to deal with legal attempts to remedy the situation.

Interstate stalking is covered by federal law. As noted by the DOJ report, however, stalking laws across the states vary greatly. Though all 50 states have enacted anti-stalking laws, they often define stalking differently. States differ on the kind and quantity of victim fear or emotional distress required, as well as the required intent of the stalker. Some state laws specify that the victim must have been frightened by the stalking, while others require only that the stalking behavior would have caused fear in a reasonable person. Some state require prosecutors to prove fear of death or serious bodily harm. Others require only that prosecutors prove that the victim suffered emotional distress. Here are some resources to help you find the stalking laws in your state


 

Although a person's home is their castle, videotaping what goes on inside can come at a hefty price. An Iowa man discovered this after he secretly taped his own wife in their house, and following their divorce, was slapped with a $22,500 award against him for invasion of her privacy. This comes on the heels of a story last week about a Nebraska man who sued his ex-wife and former father-in-law accusing them of spying on him by hiding an audio recording device inside his daughter's teddy bear. However, unlike that case, the story in Iowa raises hard questions about videotaping during a marital relationship.

As the Iowa Supreme Court put it delicately, the marriage of Jeffrey and Cathy Tigges already had "trust issues" when it began. Before the marriage, Jeffrey and Cathy had recorded each other's telephone conversations without the other's knowledge and consent. This case was also not about the wife being caught in unseemly situations, as these videotapes didn't contain anything of a "private" or "sexual" nature in the bedroom. The court even gave the husband the benefit of the doubt by assuming that the couple was not separated nor living in different houses at the time the tapings occurred. Yet, even with all these considerations, the court found that Jeffrey had indeed invaded his wife's privacy and was liable for damages.

Courts have been careful in how far they go in these marital privacy cases, indicating that their decisions would probably be different in cases where a husband spies on his wife with his own eyes. Videotaping takes the issue to another level, as one Texas court put it:

"the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse because it may record private matters, which could later be exposed to the public eye. The fact that no later exposure occurs does not negate that potential and permit willful intrusion by such technological means into one's personal life in one's bedroom."

The mistake people often make when conducting secret videotape surveillance is that they only consider their own rights, especially when it comes to taping on their own property. Although this is understandable, and strong arguments could be made in favor of such a position, courts and legislators have not looked at it that way. Instead, courts will look at it from the point-of-view of those being videotaped and ask whether those individuals had a reasonable expectation of privacy at the time they were secretly videotaped.

Last, but not least, some states make it a criminal offense to install or use cameras in private places. Recently, a state court upheld a Wisconsin man's conviction for violating the state's law for recording another person in the nude, without their knowledge and consent, even though the other person was his girlfriend who knowingly exposed herself to him. States vary in their treatment of surreptitious videotaping, and an individual or business considering it should first give a good thought to the privacy expectations of those they are going to be taping, and better yet, consult a local attorney to ensure they take all necessary steps to protect themselves from liability.

Dell Inc. has reached a $3.35M settlement agreement with the attorneys general of 34 states, to resolve charges that the Texas-based computer giant engaged in deceptive customer service practices related to financing promotions, warranties, and rebates.

Under the agreement, Dell will pay $1.5M into an account from which customers will be able to receive restitution for problems with Dell products and services (if they file a claim within 90 days), and the company will also pay $1.85M to each state involved in the settlement. According to the Connecticut Attorney General, Dell has also agreed to act with more fairness and transparency in its customer relations, by providing "clearer and more conspicuous advertisements and disclosures to consumers about financing terms and warranty services, prompter rebates and more intense efforts to resolve consumer complaints." Reuters reports that Dell is alleged to have "engaged in 'deceptive' financing promotions, promising zero-percent financing but charging [customers] higher rates. In addition, consumers said they failed to receive promised rebates and had trouble getting warranty service."

To find out whether your state is part of the Dell settlement agreement, and for detailed information on filing a claim in time for the 90-day deadline, contact the office of your state attorney general.

The National Safety Council (NSC) has called for banning all cell phone use while driving. The NSC warning goes further than many other such calls by asking states to ban even hands-free cell phone driving.

The NSC, who previously led the “Click it or Ticket” campaign on seat belt use, plans to combat cell phone driving through advocating state legislation against it, and by educating drivers and businesses on the risks of cell phone driving.

The NSC cites National Highway Traffic Safety Administration data showing that 80% of accidents are caused by driver inattention. According to the NSC, cell phone use is the number one cause of driver inattention. According to an NSC fact sheet, drivers who use cell phones are four times more likely to crash while using their phone.

Currently, at least seven states have banned driving while talking without a hand-free device and/or driving while texting. More states capture these behaviors in general laws against driving while distracted. Many states have yet to address the problem directly. No state has enacted a ban on cell phone use including hands-free use.

For the NSC, banning drivers from texting and talking on handsets is not enough. As contended by the NSC, there is no difference in the level of distraction while talking on a hands-free device and talking on a headset while driving.

As reported by CNN, the cell phone industry opposes the ban advocated by the NSC. Reasons cell phone advocates cite include the creation of a false sense of security through laws restricting phone use, the ability to safely use cell phones for brief stretches while driving, and particular times (such as emergencies) when cell phones are appropriate while driving.

It looks like the economic downturn may mean an upswing for taxing internet sales. The AP reported today that, as states feel their budgets being increasingly squeezed by the current recession, they may turn to taxing online sales to help stem their woes. An analyst from Forrester Research estimates that if Web retailers had to collect taxes on all sales to consumers, it could generate $3 billion in new revenue for governments. Even though this represents just a drop in the bucket as far as states' total budget deficits go ($89B according to one measure), some states have been looking for ways to tax such sales for quite a while.

Under current laws, if an online retailer has a "physical presence" in a given state, it must collect sales tax from customers in that state. Physical presence usually includes things such as business and sales offices, warehouses, etc. This is where some states, such as New York, are stepping in and redefining "physical presence" so as to impose a requirement that out-of-state Web retailers must collect taxes on shipments to New York residents, even if the companies are physically located elsewhere. So what does this mean for those of us who love the joy of finding that obscure internet deal, and better yet, getting it at the price we first saw on the screen?

At this point, the primary impact of this move would be felt by out-of-state retailers doing business on the Internet. Somehow, affected retailers will have to figure out each state's own laws addressing online sales, and then implement the taxes into their online sales systems in order to pass on the tax to the correct consumers. It should be noted that New York has been sued by the online retailer Amazon.com over the constitutionality of the tax law, raising the argument that it has no employees or physical presence in the state and should remain untaxed.

However, one analysis suggests that consumers are not going to be happy paying taxes on their Web purchases, although the same people probably don't give enough weight to other advantages such as "traffic, cost of gas, etc., the time and convenience" of shopping online. Consumers should keep in mind that they aren't supposed to get away from taxes on their online purchases Scott free, either. Consumers are supposed to report taxes on their online purchases as a "use tax", but it looks like states are realizing that the people who sit down and spend some serious time tallying up their year's worth of online purchases and taxes are in the minority.

The legal landscape over the internet sales tax issue is still a ways from being cleared up, but consumers should keep an eye out for developments in their state's tax laws, and perhaps a sharp eye on line items when "checking out" to make their online purchases.

Today a federal judge refused to jail accused Ponzi scheme artist Bernard "Bernie" Madoff pending his trial. The court denied prosecutors' request to jail Madoff after he allegedly mailed off assets including jewelry valued over $1 million in violation of an agreement he made with prosecutors. The judge allowed Madoff to remain in house arrest, but added conditions to his bail to forbid the transfer of valuables and to require that Madoff make an inventory of the valuables in his Manhattan penthouse.

Bickering over bail for the millionaire accused Ponzi scheme artist offers an opportunity for a quick refresher: what is bail and how does it work?

Courts have a variety of methods to ensure that defendants show up for trial or required hearings. "Bail" is one of them. It allows defendants to remain out of jail until they are convicted by paying money and sometimes agreeing to certain conditions. In criminal cases it comes up at three main points: 1) after arrest but before trial; 2) after a guilty verdict but before sentencing; and 3) after sentencing but before appeal.

When a defendant poses a threat to the community or clear risk of flight, judges can deny bail altogether and order them jailed while their case is pending. When bail is allowed, a defendant pays the court bail as a promise that they will attend the trial or hearing. The court then pays the bail back once the defendant appears. Some lesser offences don’t require any bail. Such defendants are released on their "own recognizance," meaning failure to show up results in possible arrest and extremely slim chance at bail next time.

Courts often accept payment of a bail bond instead of the full bail amount. This means the defendant pays a portion of the bail amount upfront, on the condition that they will owe the whole amount if they fail to appear. Bail can also be posted by a third party. Defendants often use a bail bond agent, or "bail bondsman" when they cannot afford the bail amount. In these cases, the defendant pays a fee or portion of the bail to the bond agent, who posts the bail or bond promising the court to pay the full bail amount if the defendant does not appear.

Judges set bail amounts, though many jurisdictions have preset bail amounts for commonly committed crimes. Under the Eighth Amendment of the Constitution, bail cannot be set excessively, meaning that it cannot be more than required to ensure the defendant shows up. In theory, bail or denial of bail cannot be used to punish the defendant, but only as a way to protect community safety and prevent the defendant from flying the coupe.

Today the court decided that Bernie Madoff doesn’t pose a serious flight risk or threat to the community, so out on bail and under penthouse arrest he remains.

A Piper PA-46 Turbo Prop aircraft flying from Indiana crashed late Sunday night near Milton, Florida, and although indications appeared to indicate some kind of accident, now it's far less clear what exactly is going on. According to the Santa Rosa County Sheriff's Office, when the plane was just southwest of Birmingham, Alabama the pilot indicated that the plane's windshield had imploded and that he was "bleeding severely." Thereafter, "an attempt was made to divert the pilot" to another airport in Alabama but the "pilot did not respond to radio calls" from the FAA Atlanta Center.

Subsequently, military planes intercepted the plane, noticed the door to the plane was open and the cockpit was dark, and then followed the plane all the way until it crashed. Actually, the Piper PA-46 is not a plane with a clean accident history. The National Transportation Safety Board (NTSB), the agency charged by Congress with investigating every civil aviation accident in the United States, has online records showing that the plane suffered seven incidents in 2008, out of which four resulted in fatalities. A related article discusses one of those incidents, where a Piper PA-46 craft appeared to have disintegrated while in midair in Canada. The article raises concerns about the model in the context of whether the plane itself is defective in some way.

However, in an odd twist to the story on Sunday's crash, CNN reports that the pilot, Marcus Schrenker, has been spotted alive after he checked into an Alabama hotel using a false name. Sgt. Scott Haines of the Santa Rosa County Sheriff's Office informed CNN, "All indications now are that he made some type of false emergency call (and) abandoned the plane by parachute". Strangely, the manager of Anderson Municipal Airport apparently told CNN the plane did not have a parachute inside and even added that he didn't think it was possible to eject from this type of aircraft.

While it is far too early to know the motivations behind such a false call, the circumstances appear to beg the question of whether Marcus Schrenker had any incentive to fake his own death. Blogger speculation has begun as Marcus Schrenker appears to be the owner of a private investment company and according to one blog was "was served a warrant on December 31st at his Cambridge home for securities fraud according to local authorities." Say no more?

A nationwide outbreak of salmonella has sickened at least 400 people in 43 states, and a number of peanut butter products linked to the same salmonella strain have been recalled.

The reported infections of Salmonella serotype Typhimurium began between September 3 and December 31, 2008, with most illnesses beginning after October 1st, and 18 percent of reported cases requiring hospitalization, according to a Centers for Disease Control (CDC) Press Release being periodically updated. The CDC, U.S. Food and Drug Administration (FDA), and state health officials are working to pinpoint the exact source of the salmonella outbreak. The FDA website has a list and searchable database of recalled peanut butter products, so that consumers can keep track of impacted products.

What is Impeachment? Blagojevich News Has Many Wondering

The recent impeachment of Illinois Governor Rod Blagojevich has many people wondering what “impeachment” really means. In what the LA Times is calling “an expected move,” Illinois state legislators voted today 114 to 1 to impeach the embattled governor. The next step is a trial in the Illinois Senate.

But, what does it all mean? Impeachment is the first step in a formalized two-step process by which elected officials are removed from office by their fellow elected officials for legal reasons related to misconduct in office. Sometimes people use the term “impeachment” to refer to the entire process, although that isn’t a fully correct usage of the term. Impeachment shouldn’t be confused with recall, which is the process by which elected officials are removed from office by the voters for political reasons. A fairly recent example of recall is the California recall of Governor Gray Davis, which resulted in Arnold Schwarzenegger being elected governor.

Impeachment is technically the formal bringing of charges against an elected official, similar to the indictment by a grand jury in a criminal trial. In the case of a presidential impeachment, the House of Representatives has the sole power of impeachment. That is, the House has the responsibility to investigate the alleged misconduct and formally bring charges. The Senate then has the responsibility to try the president on the charges brought by the House. If the Senate convicts on any one article of impeachment (charge against the president), then the president is immediately removed from office.

Impeachment and trial of state elected officials will follow the procedures set out in the governing documents of that state, but the general process tends to be fairly consistent with the federal process detailed in the U.S. Constitution. The process in Illinois is governed by the Illinois Constitution, which states:

Section 14. Impeachment

The House of Representatives has the sole power to conduct legislative investigations to determine the existence of cause for impeachment and, by the vote of a majority of the members elected, to impeach Executive and Judicial officers. Impeachments shall be tried by the Senate. When sitting for that purpose, Senators shall be upon oath, or affirmation, to do justice according to law. If the Governor is tried, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without the concurrence of two-thirds of the Senators elected. Judgment shall not extend beyond removal from office and disqualification to hold any public office of this State. An impeached officer, whether convicted or acquitted, shall be liable to prosecution, trial, judgment and punishment according to law.

(Source: Illinois Constitution.)

Now that Governor Blagojevich has been impeached according to the requirements of the Illinois Constitution, the next step will be a Senate trial.

A 29-year old elementary school teacher, Christine A. McCallum, was arraigned on three charges of statutory rape today. As reported by the Boston Herald, prosecutors allege that she had sex with the alleged victim when he was 13, 14 and 15 years old. Authorities further claim that she was "obsessed" with him, and read excerpts of letters she supposedly wrote him stating that "There's no question I will choose you over this job." It's probably too late to ask the more pertinent question as to whether she'd choose him over, say, jail time. However, with the history of teachers making front page news whenever statutory rape charges are brought, there is an ongoing debate regarding whether male and female teachers accused of statutory rape are treated equally in the eyes of the public and the law.

One of the more infamous cases involving an affair between teacher and student was that of Mary Kay Letourneau and her sixth-grade student, whom she later married. In an interesting article on the double standard topic, Susan Estrich, noted that Letourneau "was not even imprisoned after her 1997 conviction until she refused to obey the judge's order to stay away from the then-14-year-old. Only when she made clear that she had no intention of ending the relationship did the judge order her incarcerated." Estrich continues by noting that a man in the same situation would never be treated the same way, are labeled "rapists", and are "punished severely". Another writer contrasts examples in Virginia during the 1990's where a male teacher who had sex with three teenage female students was sentenced to 26 years in prison, and the next day, a female swimming coach who had an "affair" with an 11-year-old boy and sexual encounters with two others got 30 days.

Even the way victims are treated by society is noticeably different. Some people, particularly males, are incredulous when a boy victim reports his teacher's misconduct. Police Chief David Majenski appears to be treating McCallum's case extremely seriously, stating "We truly believe this party is a predator." McCallum has only been accused of the crimes at this point, and only time will tell whether she is being treated by the law as any other accused "predator" would be.

Morgan County Alabama Sheriff Greg Bartlett spent Wednesday night in jail. A federal judge sent him there for contempt of court regarding failure to make good on past promises to properly feed Morgan County jail inmates. In the past three years, Sheriff Bartlett has pocketed over $200,000 meant to feed the inmates. In Alabama, that’s not necessarily illegal.

As reported by the New York Times, Alabama currently allocates $1.75 per day to feed inmates in county jails. Since he became sheriff in 2003, a nice chunk of that $1.75 for each inmate's daily sustenance in Morgan County went into Greg Bartlett’s pocket.

Under an Alabama law dating back the early decades of last century, sheriffs are allowed to keep whatever portion of the inmate food budget which they do not spend. According to Federal Judge U.W. Clemon, this law invites criminality in sheriffs by giving them a direct monetary incentive not to feed prisoners. The head of Alabama Sheriffs' Association sees it differently. He complained to the Times that "[y]ou're never going to satisfy any incarcerated individual ... an inmate is not in jail for singing too loud in choir on Sunday."

Though the law allowing sheriffs to pocket inmate food money seems a relic from the past, Alabama recently gave it a fresh stamp of approval. In March of 2008, the Alabama Attorney General's Office issued an opinion in stating that sheriffs keeping the unspent inmate food funds was, in fact, legal.

According to Judge Clemon, however, authority to pocket money meant for inmate food does not entitle sheriffs to inadequately feed the inmates. He stated that Sheriff Bartlett blatantly violated past agreements to properly feed his inmates. He also stated that he could not ignore undisputed evidence that most of the inmates had lost significant amounts of weight.

CNN reports that Sheriff Bartlett was released Thursday. Through his attorney, he promised to use all state and federal funds allocated to feed inmates, and that "fresh fruit, fresh milk, vegetables and whole grains will be a regular part of the monthly menu."

Yesterday, earthquakes rattled Costa Rica and Southern California and while, thankfully, no lives were reported lost in the California earthquake, the death toll from the Costa Rica quake has risen to fourteen as of today. People might wonder where they can turn in the event they or those they love are injured in an earthquake, or perhaps simply in the event their property is damaged. If they are going to look to the court system, it could be a tough row to hoe.

Just last month, a court in China rejected a lawsuit brought by more than 50 families of children who were killed when a school collapsed during China's huge earthquake in May of 2008. Their claims that poor construction and negligence by local officials were major contributors to schools' structural failures apparently fell on deaf ears and have fueled concerns regarding the government's investigation of the quake and its certification of building codes that failed.

Here in the United States, an earthquake is viewed by contract law as an "act of God", or something beyond people's capacity to control. Many general and homeowners insurance policies don't cover damages caused by acts of God, and specific coverage for certain disasters must be obtained separately. At times, disputes arise as to whether a violent storm or other disaster was an act of God or a foreseeable natural event, as was the case with some of the flooding caused by Hurricane Katrina. However, a study conducted by the Insurance Information Network of California indicates that even a decade after California's Northridge earthquake caused more than $15 billion in insured losses, fewer than 15 percent of the state's homeowners carry earthquake insurance. With that in mind, is there another avenue for those injured in an earthquake to seek recovery?

In personal injury cases, an earthquake could lead to liability if the cause of a person's death was the foreseeable result of the negligence of a person or company. For example, if a building is not constructed up to code, and collapses during an earthquake, the builder will likely be found negligent and could be held liable for any personal injury. As a result, in places like California where seismic activity is a daily occurrence, builders should stay on top of the constantly evolving code standards. Finally, businesses and employers could also face liability for damages resulting from their failure to take reasonable and cost effective hazard mitigation and disaster preparedness actions prior to an earthquake.

Clearer Tax Laws, Help for Struggling Taxpayers Urged

The seemingly endless reams of complex federal tax laws and regulations need to be simplified, and more assistance is necessary for taxpayers who are struggling to pay their tax bills, the National Taxpayer Advocate’s office urged in its annual report to Congress, released Wednesday.

According to an IRS News Release announcing the release of National Taxpayer Advocate Nina E. Olson’s annual report: "U.S. taxpayers spend $193 billion a year complying with income tax requirements, an amount that equals 14 percent of the total amount of income taxes collected. One count shows the number of words in the tax code has reached 3.7 million, and over the past eight years, changes to the tax code have been made at a rate of more than one a day – including more than 500 changes in 2008 alone. Individual taxpayers now find the tax rules so overwhelming that more than 80 percent pay transaction fees to help them file their returns – about 60 percent pay a preparer to do the job and another 22 percent purchase tax software."

The report also urges three key steps to reduce the burden on financially struggling taxpayers: "1) Make greater use of collection alternatives when economic hardship is present, 2) Simplify the “cancellation of debt” minefield that many taxpayers who default on debts must navigate, and 3) Implement a “screen” to protect low income Social Security recipients from continuous, automated tax levies."

An independent organization within the IRS, the Taxpayer Advocate Service assists taxpayers who are struggling financially, who need help with tax problems that cannot be resolved through normal channels, or who believe that some facet of the IRS or the federal tax system is not functioning as it should.

In 1980 John Favara, backyard neighbor of then Gambino crime family captain John Gotti, disappeared after tragically running over Gotti's son Frank. Since then a mystery has shrouded Favara's fate. The AP reports that in court documents filed in a racketeering case against alleged mob hitman Charles Carneglia, the government alleges that Favara was killed on Gotti's order and that Carneglia disposed of his body in a vat of acid.

As reported by UPI, John Favara struck Frank Gotti with his car in March of 1980 when the boy darted on bike into traffic. Favara disappeared five months later. The government's case against Carneglia cites testimony from a confidential witness who once was a friend of Carneglia and a Gambino family associate. According to this witness, Carneglia later told him that he had disposed of Favara's body by his specialty acid barrel technique.

According to this witness, he himself lent the bike to the 12 year old Frank Gotti, brother of John "Junior," Peter, Angela and Victoria Gotti (who starred in "Growing Up Gotti"). Allegedly, the witness who has come forth against Carneglia was protected by Carneglia from meeting a fate similar to Mr. Favara for having lent the bike to little Frank.

With perpetrators of  gory crimes punished through racketeering laws, and John Gotti himself having gone down on racketeering indictments, we might need a refresher as to what "racketeering" means. Under federal law, racketeering means any act or threat involving any of a host of crimes including murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, and dealing in a controlled  substance or listed chemical, amongst others.

Typically, such individual crimes are the jurisdiction of state laws. Greatly assisting federal prosecution of organized crime, The Racketeer Influenced and Corrupt Practices Act (RICO) prohibits anyone engaged in racketeering from profiting through interstate commerce. While the interstate commerce element seems bland in comparison to the gory details of crimes such as murder and kidnapping, it is key because this is what allows federal authorities jurisdiction to prosecute alleged depraved mobsters such as Charles Carneglia and John Gotti.

Protests in Oakland over the officer-involved shooting death of Oscar Grant at a Bay Area Rapid Transit (BART) station turned violent overnight, resulting in a wake of destroyed vehicles and damaged businesses. Video of the shooting was captured by other train passengers and has been widely viewed via YouTube, as well as various news and other Web sites.

On Thursday, the Mercury News reported that some businesses closed early or sent employees home based on concerns over their safety and the possibility of further violence. Last night, Oakland police arrested more than 100 individuals and, while some were later cited and released, others remain held pending charges by the DA. But why were certain protestors treated differently than others, in light of what must have been the unruly scene of the riot?

The reason probably lies in the fact that, amidst all the chaos of the night, there were likely varying degrees of criminal behavior going on. On one hand, some individuals may have been detained for behaviors constituting only a misdemeanor, while others may have ended up being under arrest for having committed felonies. The difference between the two is usually based on the potential punishment for the crime, and sometimes by the place of incarceration. When a law provides for imprisonment in prison for longer than a year, that crime is usually considered a felony. If the potential punishment is for a year or less, and incarceration is in jail, then the crime is likely considered a misdemeanor.

Apparently, last night the range of crimes ran the gamut as a number of those arrested were cited and released for misdemeanors, while on the other hand guns and drugs were seized from others. Some of the charges at issue include assault on a police officer, looting, vandalism, rioting and arson. Those arrested for felonies are still being held, but police haven't indicated a specific count. California law requires that charges be filed within 48 hours, but prosecutors can change the initial charges they bring later, for example, at a preliminary hearing weeks later.

Oakland police estimate property damage from Wednesday's vandalism to be around $150,000 or higher, but at this point in time, many might be more concerned about the damage to community relations and even Oscar Grant's family is calling for an end to the violence on the streets of Oakland.

A Long Island doctor has countersued his soon to be ex-wife for the kidney which he donated to her while they were married. In addition to questions about the depths to which divorce disputes can push people, his case reminds us of age old questions regarding property distribution in divorce.

In 2001, Long Island doctor Richard Batista donated his wife one of his kidneys. In 2005 she filed for divorce. Now he wants it back. The AP reports that Batista has countersued  his estranged wife, Dawnell Batista, for the kidney he donated to her, or $1.5 million.

All kidding aside, what happens to "gifts" between spouses once a couple decides to divorce? Like divorces, the answer can be complicated.

When allocating assets in divorce, courts decide what is marital (or community) property and what is separate property. Gifts between spouses pose problems. Many states presume gifts from one spouse to another to remain marital, rather than separate, property. Some states allow this presumption to be rebutted with clear evidence that the gift was intended to be the property only of the recipient. Courts can also look at factors such as the intention of the giver, along with whether the gift is subsequently used by one or both spouses.   

Unfortunately for Dr. Batista, US law forbids the exchange of bodily organs for money or anything of value. So, a lack of property rights in his own organs might prevent the kidney from being considered a gift of value to the marital estate. In any event, it is highly unlikely that a divorce judge will be willing to place a price tag on the kidney. Yet, as Dr. Batista’s attorney eloquently put it to Newsday, "[a] price can't be placed on a human organ but it does have value."

And what about the oft repeated confusion as to who gets the engagement ring? It too can get complicated depending on where you are, but in many cases it is a "conditional gift," contingent upon the knot actually getting tied. This means it often goes back to the giver if the marriage never happens.

Which brings us full circle to Batista's claim. The classy doctor has explained that (after his wife suffered two failed transplant attempts) he intended the donation of his kidney 1) to save her life, but also 2) to turn the marriage around. Even if he wants it back because the marriage never turned around, is it better to have loved and lost a kidney than to never have loved at all?

Banks and the building industry are purportedly working together with Senators on "cramdown" legislation affecting bankruptcy judges' powers regarding mortgage loan modifications. The rule change would give bankruptcy judges the power to change repayment terms for certain homeowners who declare bankruptcy.

The Wall Street Journal reports that lenders including Citigroup are cooperating with key Senators on "cramdown" legislation to increase bankruptcy judges' power to modify the payment terms on primary home mortgages. As of last October, the WSJ reported that almost one in six homes was worth less than the value of its mortgage. "Cramdown" (or "strip down") refers to taking the value of a home's mortgage and cramming it down to the current value of the home.

Illinois Senator Dick Durbin introduced legislation including court ordered workouts of individual mortgages on Tuesday's first day of the new Congress. Endorsement of cramdown provisions by lending institutions could bode well for passage either separately, or as part of the anticipated Obama stimulus package. 

Previously, the financial and building industries lobbied vigorously against bankruptcy judges' having power to cram down mortgage terms, arguing that it would raise the cost of borrowing for potential home purchasers. "This is an about face for our organization," Jerry Howard, president of the National Association of Home Builders, told the WSJ. After government dedication of over $1 Trillion in attempts to rescue the financial sector, a new Congress hears increasing calls to do something to aid those facing foreclosure. Citigroup itself received over $45 Billion of fresh government capital.

Jeff Jagodzinski, the coach of Boston College's football team, was fired for interviewing with the New York Jets. The Boston Herald reported that at a press conference on Wednesday, BC athletic director Gene DeFilippo announced the termination and stated it was based on a "difference of vision for the future."

Apparently, Jagodzinski had advance warning from De Filippo of the consequences of his interviewing for the NFL job after the AD got wind of the interview over the weekend. Undeterred, Jeff Jagodzinski interviewed with the Jets on Tuesday and BC kept its word.

An employee's interviewing with prospective employers before quitting their current job is nothing unusual. However, employees should be aware that, since they are likely in an "at will" state, they do risk being fired for interviewing should their employer find out about it. There are some exceptions to this general rule, however, which usually involve employment contracts. If an employee and their employer formed a contract upon employment, or thereafter, it may have provisions specifically outlining the permissible grounds for termination. If worst comes to worst, a fired employee can apply for unemployment benefits.

Fortunately, the majority of people in the work force are not in the public eye nor in media-scrutinized positions, as are prospective NFL coaches. Someone who takes some time off for a surreptitious interview usually does not end up fired from their job.

As for Jeff Jagodzinski, the Herald story indicates that he'll probably be doing fine when all is said and done, as he "appears eager to get back into the NFL and might have some options with the Seattle Seahawks if he is passed over in New York."

Jardine Crib Recall Expanded Due to Toddler Injury Risk

Crib manufacturer Jardine Enterprises and the federal government have announced the expansion of a June 2008 recall of Jardine wooden cribs, due to an ongoing entrapment and strangulation hazard to babies.

About 56,000 Jardine wooden cribs -- sold at retail stores like Babies ‘R’ Us, KidsWorld, and Geoffrey’s World from March 2004 through January 2009 for between $220 and $330 -- are being recalled, according to the Consumer Product Safety Commission (CPSC). Wooden slats on the crib can break and create a gap that can pose an entrapment and strangulation hazard to infants and toddlers, CPSC warns. In June, CPSC and Jardine announced an initial recall of about 320,000 of the Jardine wooden cribs, after the agency received reports of 42 incidents of crib slats and spindles breaking, causing four children to became entrapped in the resulting gaps, and resulting in at least two injuries.

Crib recalls continue to make the news in 2009, after a number of high-profile stories in 2008. In October, almost 1.6 million cribs manufactured by Delta Enterprise Corp. and sold at retailers throughout the U.S. -- including K-Mart, Target, and Walmart -- were recalled because two potential defects in the cribs' "drop side" mechanism posed an entrapment and suffocation hazard for infants.

A Nebraska man is suing his ex-wife and former father-in-law, accusing them of spying on him by hiding a recording device inside his daughter's teddy bear. William Duane Lewton claims his ex-wife and her dad attempted to present the audio recordings in the couples' divorce proceedings (the judge in the case found that they violated Nebraska's wiretapping law and couldn't be used as evidence).

The lawsuit also raises issues regarding professional ethics, as it apparently includes Lewton's ex-wife's former attorney William Bianco, Bianco's partner Chris Perrone, and their firm, suggesting that they took part in the ill-fated spying attempt. However, Perrone disclaimed any responsibility for the recordings, stating "we had nothing to do with it" and "we did not advise her to do so." Further, he stated that Dianna Divingnzzo was no longer a client, and that she herself presented the recordings in court. An attorney risks the almost certain loss of their license, in addition to the potential legal consequences of the act itself, if they advise their client to break the law (or if they fail to advise them not to, upon finding out their intent).

Most states make eavesdropping illegal, and secretly recording telephone calls (or wiretapping) without adequate permission or court order is prohibited by federal law. In some states it's even illegal for parents to eavesdrop on their own children. Unlike audio recording devices, the legality of hidden cameras varies from state to state, and the location where videotaping is being done is usually one of the crucial factors. Various states expressly prohibit the unauthorized installation or use of cameras in private places. People should be aware that the penalties for violating most of these laws are severe, however, as they can be felony offenses.

Today prosecutors sought to have admitted Ponzi scheme artist Bernard Madoff jailed until his trial. This move came after Madoff and his wife allegedly transferred assets valued over $1 million to friends and family in violation of his bail agreement.

Initially, prosecutors were fine with Madoff remaining under house arrest at his Manhattan penthouse. This was in part due to his purported cooperation with the investigation. As a condition of his bail, Madoff was forbidden from transferring any money, personal or real property under his control. Instead, as the AP reports, he and his wife allegedly sent 13 watches, a diamond necklace, an emerald ring, two pairs of cuff-links and at least two unidentified packages off to friends and relatives.

Meanwhile, bilked investors continue their fight to recover scraps of the billions invested. Investors ranging from the jet set to large charities have been hit hard and in some cases wiped out. Charities including California's Chais Family Foundation, which gave millions annually to Jewish causes worldwide, have had to shut their doors.

The scandal has also claimed at least one life. French financier René-Thierry Magon de la Villehuchet committed suicide in New York after being "totally ruined" by the Madoff debacle. Along with much of his own fortune, he lost millions in investments on behalf of friends and family to Madoff's alleged fraud.

Though we look to our regulators to root out investment fraud, as the Madoff case illustrates, this is not always the best source of protection. SEC Chairman Christopher Cox admitted "grave concern" over the SEC's failure to detect Madoff's scheme for decades. In today's New York Post, Meghan Cheung, the former chief of the New York SEC branch defended the SEC's work on a 2006 investigation into Madoff. She signed off on closing the investigation due in part to Madoff's cooperation. Despite tips to the SEC that Madoff was operating a giant Ponzi scheme, the 2006 SEC investigation was called off due to SEC regulators being able to find no evidence of fraud.

With high flying investors losing their shirts and the possibility of fraud falling through cracks in regulatory enforcement, how can investors best protect themselves? As is often the case, care up-front offers the best chance of preventing harm. Here are some resources to help investors navigate potential investment decisions and advisors.

Electronic unemployment filing systems have been crashing in three states or more in recent days as thousands of recently jobless Americans seek benefits, according to an AP report. This comes on the heels of a Reuters story indicating that private-sector employers unloaded 693,000 jobs in December. That figure is based on a report by ADP Employer Services, which further reflects that the employment situation is significantly worse than expected and dims the prospects for an upcoming jobs report, as well.

Economists surveyed by Reuters had, on average, predicted a loss of 473,000 private-sector jobs in December, significantly less than the actual figure. The AP story indicates that currently about 4.5 million Americans are collecting jobless benefits, a 26-year high, which is probably putting an excessive and unexpected strain on the electronic systems.

Alarmingly, an official with a company that developed the job-loss report said he still expected a little more than 2 million U.S. job losses over the next year. These are hardly the first worrying reports regarding unemployment and benefits. In October 2008, various stories surfaced about dwindling unemployment funds in some states. All in all, it seems that as many states states reel from the impact of the ailing economy, as well as their own budget crunches, these problems could re-surface at any time.

Although the AP story indicates that other states are adjusting their systems so that they do not fall victim to the same electronic claims problems, as one worker who lost his job in November said, "It's a bad sign for North Carolina's economy when you've got so many people trying to get into the system and it crashes."

The Social Security Administration (SSA) on Tuesday unveiled a new online retirement benefits application program, a move that is intended to help the federal agency deal with the expected flood of Social Security enrollment as "baby boomers" enter retirement and become eligible to receive benefits.

The new online application process asks retirement benefit enrollees a series of questions about their work history and their financial needs, lets applicants stop and restart the application process at any time, offers helpful answers to questions that may arise during the application process, and allows users to submit the application electronically without signing any forms. "Social Security's new online retirement application can be completed in as little as 15 minutes from the comfort of your home or office . . . Filing online means there's no need to drive to a local Social Security office or wait for an appointment with a Social Security representative," Commissioner of Social Security Michael J. Astrue declared in a News Release announcing the online application program.

The huge number of "baby boomers" (the first post-World War II generation) at or near the Social Security eligibility age of 62 means that over the next 20 years, up to 10,000 people per day will become eligible to receive Social Security retirement benefits, according to the SSA.

Multiple videos, some captured by passengers on San Francisco Bay Area Rapid Transit (BART), have shed light on the fatal shooting of an unarmed passenger by a BART police officer. The family of the victim, Oscar Grant, has filed a $25 million claim against BART.

The incident occurred on New Year's Day. As the San Francisco Chronicle reports, the officer in question has yet to provide a statement regarding the incident. Multiple videos have surfaced, some captured by other passengers on their cell phones, shedding further light on what happened. One video shows the group of three young men, including Grant, sitting restrained by BART police after being pulled off the train. Next, it shows Grant restrained face down while a BART officer pulls out his firearm and shoots Grant in the back.

BART spokesman Jim Allison said that the officer's gun went off while officers tried to restrain Grant, who he said was not in handcuffs. As the Chronicle reports, a source familiar with the investigation indicates the possibility that the officer mistook his gun for a Taser and killed Grant in an errant attempt to tase Grant.

Oscar Grant's family has filed a $25 million wrongful death claim against BART. It alleges that excessive force was used in the young man's killing. Bart will have 45 days to accept or reject the claim. BART officials have not released the name of the officer in question, but he was identified in the family's claim as Johannes Mehserle. Mehserle is on paid leave while authorities investigate. An outraged community has staged protests outside BART's Oakland headquarters.



The New York Daily News reports that Liskula Cohen brought a lawsuit against Google seeking to discover the identity of a blogger who called her a "skank" and an "old hag". With gory details of the blog entitled "Skanks in NYC", the New York Post laid out the online broadside levelled at Cohen, "I would have to say the first-place award for 'Skankiest in NYC' would have to go to Liskula Gentile Cohen," "Anonymous" wrote in one posting, and it just got worse from there.

Liskula Cohen's suit is more specifically directed toward Google's Blogger.com service where the offending material was posted. However, as acknowledged by Cohen's own attorney, it is typically very challenging to identify anonymous posters or bloggers who publish defamatory material. There have been numerous First Amendment cases dealing with these issues, and this particular area of law is constantly and swiftly evolving.

As almost anyone with an email or instant messaging account knows, it is common to communicate using pseudonyms. One of best qualities of the Internet is that people can speak freely and openly without revealing who they really are. However, the flip-side to that coin that sometimes people feel free to post misleading, false, and yes, even insulting material. If someone feels they've been defamed, they can seek to determine the identities of the anonymous parties.

In such cases, courts end up deciding whether the anonymous speaker's identity should be disclosed. As noted in a commentary by FindLaw columnist Eric Sinrod, "because of First Amendment guarantees of freedom of speech ... the court normally will err on the side of protecting the identity of the speaker unless the party seeking disclosure can make a "prima facie" showing up front in the case that the speech at issue truly creates liability and that true harm and damage has ensued."

Tyson Foods, Inc., pleaded guilty to willfully violating worker safety regulation and causing the death of an employee. The world’s largest producer of chicken, beef and pork agreed to pay $500,000 for its violation, and will also serve one year of probation.

As reported by Reuters, Tyson pleaded guilty to a "willful violation of an OSHA standard resulting in the death of an employee." Such violations are the most serious offences of Occupational Safety & Health Administration (OSHA) rules. The $500,000 fine is the maximum allowed. Tyson also agreed to serve one year of probation.

The accident occurred in 2003 at a Tyson plant in Texarkana, Arkansas which converts poultry meat and byproducts into animal feed. Tyson employee Jason Kelley, attempting to fix a piece of leaky equipment, was killed by exposure to hydrogen sulfide gas. The gas is created by hydrolyzers, high-pressure steam processors which convert poultry feathers into "feather meal." OSHA requires employers to take steps to limit worker exposure to dangerous gases such as hydrogen sulfide.

After pleading guilty, Tyson officials issued a statement reiterating their regret over the death of Mr. Kelley, and pointing out that they have since implemented changes to prevent such accidents from happening again. In the plea agreement, Tyson agreed that before the accident, its corporate safety and regional management were aware of the dangers of hydrogen sulfide gas and of its presence in the Texarkana plant, but failed to act to prevent worker injury and death.

In 2003, discharge of untreated waste water from a Missouri Tyson chicken plant into tributaries of the Lamine River lead Tyson to plead guilty to more than 20 violations of the Clean Water Act.

Raed Jarrar Settles Discrimination Suit Against JetBlue

JetBlue Airways and TSA officials will pay $240,000 to an airline passenger who was forced to cover his T-shirt containing Arabic writing before he could board a plane. The AFP reports that the American Civil Liberties Union (ACLU) brought the lawsuit claiming that Raed Jarrar, a U.S. resident, was discriminated against based on the Arabic message on his T-shirt and his ethnicity.  The T-shirt read "We Will Not Be Silent" in English and Arabic, and Raed Jarar was told other passengers felt uncomfortable because wearing an Arabic-inscribed T-shirt in an airport was like "wearing a T-shirt at a bank stating, 'I am a robber.'"

In light of the increased security and related laws passed since 9/11, concerns about ethnic profiling have been on the rise, as there have been multiple instances in which Muslims have been removed from flights for allegedly suspicious behavior.  Just last week the AP reported that nine Muslim passengers were kicked off an AirTran flight based on certain remarks they made.

In 2006, the New York Times reported that six Muslim imams were removed from a US Airways flight after they allegedly engaged in suspicious behavior.  The suspicious behavior apparently included their prayers at the gate.

Travelers should also be aware of another airline and government security practice that of passenger pre-screening and no-fly lists. FindLaw columnist Anita Ramasastry discussed in a commentary how JetBlue provided 5 million passenger itineraries to a private defense contractor, possibly in violation of the law.

Congress has not been blind to the lawsuits spawned by incidents such as those endured by Raed Jarrar and the imams. However, as noted by the AP in 2007, Congress's response was to pass a bill immunizing people who report suspicious behavior to airlines and officials.

Study: Teens Reference "Risk Behaviors" on MySpace Pages

Most teenagers who maintain an online profile on the social networking site MySpace make reference to "risk" behaviors like sex, drug and alcohol abuse, and violence on their pages, according to a study released Monday.

The study Display of Health Risk Behaviors on MySpace by Adolescents, from the Archives of Pediatrics & Adolescent Medicine, looked at the publicly-available social networking profiles of 500 18-year-olds and concluded that 54 percent of those profiles illustrated "risk behavior information": referencing sexual behaviors (24 percent of profiles), substance abuse (41 percent), and violence (14.4 percent). A Washington Post article discusses a related study on teens' risky online behavior, one in which the lead author created her own MySpace profile and emailed warnings to a number of teens about the dangers of posting "risk behavior" information on their social networking pages. 42 percent of those teens either changed their pages or made their profiles private. According to the Post, parents should consider taking similar steps with their teenagers, or try "Googling" their kids' names and talking with them about the search results.

The dangers that social networking websites like MySpace and Facebook pose to young people has taken center stage in recent months. In November, a suburban Missouri mother was convicted of three misdemeanors for her part in creating a phony persona on MySpace, actions that set in motion a series of events that ended in the suicide of a teenage girl. Earlier in 2008, MySpace reached an agreement with the attorneys general of 49 states on a number of measures to protect young MySpace users and keep sexual predators from using the site.

What do a Pulitzer Award winning playwright, an NBA star and an NBA legend have in common? DUI arrests within the last week. Sam Shepard, Antoine Walker, and Charles Barkley show us yet again the legal risks accompanying drunk driving.

And it's not just for the famous. Over a 21-day holiday DUI crackdown campaign in Alameda Count,y California, more than 1200 people were arrested on DUI charges. The calamity of a holiday reveler's first DUI charge easily becomes the gift of business for DUI lawyers. For celebrity and plebian alike, here are some helpful FAQ's about what happens when one gets pulled over for suspicion of driving under the influence.

Q: Can they pull me over even if I'm driving fine?
A: Yes. Most if not all states allow DUI checkpoints where law enforcement can perform an initial inspection and further investigation if suspicion is aroused. Additionally, any reason an officer might pull you over - expired tags, broken tail light, etc. - will allow an officer the opportunity to assess your sobriety.

Q: Do you have to take the breathalyzer test?
A: No, you may refuse to take a breathalyzer or other chemical sobriety test, but there are consequences. Most states have "implied consent" laws which dictate mandatory penalties for refusing to take a sobriety test. These can include automatic suspension of your license. Further, at your trial, the prosecutor can tell the jury that you refused to take the test. Some states allow consultation with an attorney before deciding whether to take a chemical sobriety test.

Q: If you blow under the legal limit, are you home free?
A: No. Even if your blood alcohol level is below the legal limit, you can be convicted of DUI. Evidence including testimony as to your driving, your statements, your appearance, your performance on field sobriety tests and video tape at the scene can be used to convict you of DUI. Driving with a blood alcohol level over the limit is "per se" DUI, meaning no other evidence is needed. In many states, certain drivers (such as teens) are subject to zero tolerance DUI laws, allowing conviction with any trace of alcohol.

Q: Does the officer have to read you your Miranda rights to ask about your intoxication?
A: No. The officer must read you your rights if deciding to arrest you for DUI. Before arrest, questions, field test and chemical tests to assess your sobriety do not require that they read you your rights.

Cities and counties across the country are set to spend funds from the Department of Housing and Urban Development to help clean up abandoned homes. The $4 billion allocated by Congress would go toward refurbishing and selling homes that have already been foreclosed.

As reported by the LA Times, the "Neighborhood Stabilization Program" will help cities fight the viral effect of dropping property values which sink further due to disrepair and blight associated with foreclosed and abandoned homes. HUD spokesman Brian Sullivan stated that this will give cities "at least the opportunity to stanch the bleeding."

Though many still await boosted federal assistance to help those facing looking foreclosure, these $4 billion will go toward refurbishing, re-selling, or demolishing if necessary, already foreclosed homes. The funds must go towards homes in low- or middle-income neighborhoods. The homes cannot be resold to people earning more that 120% of the area’s median income.

City and county governments had until December 1 to submit their applications. The funds must be spent in the next eighteen months. Many, with foreclosure problems far exceeding the funds they will receive, have long been analyzing the best ways to spend the money.

Of all states, Florida will receive the most money, $541 million. 8% of all home loans in Florida within the past 18 months are currently in foreclosure, according to HUD statistics.

Work on off-shore oil platforms involves risk of highly dangerous accidents. As seen in recent helicopter crashes, the commute to and from such jobs can also be risky. On Sunday, a helicopter operated by Petroleum Helicopters, Inc. (PHI) crashed, killing eight in transport to an oil platform off Louisiana’s coast.

The helicopter went down shortly after take-off on Sunday afternoon in the marshes of southern Louisiana's coast, reports the AP. It killed workers from Louisiana, Florida, Alabama and Texas. The lone survivor remains in critical condition at a suburban New Orleans medical facility.

PHI operates helicopter flights to oil and gas platforms sprinkled along Louisiana’s coast. Workers on the oil platforms often are ferried to work on such flights.

Workplace safety on offshore oil rigs is governed by Occupational Safety & Health Administration (OSHA) regulations. Traditionally, OSHA does not classify injuries occurring during employees' "normal commute" as "workplace injuries." However, the latest crash, in addition to a helicopter crash in December which killed three and left two missing at sea en route to a platform in the Gulf of Mexico, illustrates the potential danger to offshore oil workers before they even arrive at the platform.

The National Transportation Safety Board and PHI are currently investigating the yet unknown cause of the crash.

Potential increased drilling for oil off U.S. coastlines, combined with growing unemployment could mean more workers accept the risks associated with work on the platforms. In addition to the debated environmental concerns, workplace safety on the platforms and in transit to them will likely be watched.

New Year, New Minimum Wage in Many States

A number of states rang in 2009 with an increase in the minimum wage many employees must be paid under the law. Effective January 1, 2009, the minimum wage increased in states such as Arizona, Connecticut, Florida, New Mexico, Ohio, Oregon, Vermont, and Washington. (See the minimum wage rates in every state, current as of January 1, 2009.) A number of other states whose minimum wage standard is tied to the federal rate are scheduled to see an increase from $6.55 to $7.25 an hour on July 24, 2009.

Federal law requires that most employees receive a wage of at least $6.55 per hour (the current federal minimum wage), while some states have set their own minimum wage rate at a higher level. In many states, certain types of employees are exempt from minimum wage requirements -- including administrative, professional, executive, and outside sales employees, and certain farm and fishing industry workers. (Learn more about the minimum wage laws.)

How to Divorce in a Downturn: Keeping Costs Down

Tough financial times often breed unhappy marriages. They also make it harder for couples to split. Should increased efforts to keep it together fail, there are ways to keep divorce costs down that can help parting couples in lean or green times.

Though we don’t yet have full statistics for 2008, anecdotal evidence from across the country indicates that the financial crisis has changed the equation of many couples who would otherwise divorce. The cost of the divorce process, shrunken financial assets, and increased difficulty in getting by separately can force many couples to stay together rather than split. Should staying together prove unworkable or merely temporary, here are some options for how to divorce while keeping costs down.

Summary Divorce: In most states, certain couples are eligible for summary divorce procedures which require less paperwork, fewer court appearances and less time. Typically, such couples have been married for a relatively short time, have no minor children, and have no substantial real estate assets, joint or separate financial assets. Even if children or significant assets are in play, resolution of key issues may allow the couple to utilize summary divorce procedures.

Mediation: Mediation is a process through which a neutral third party helps the couple reach an agreed upon dissolution of the marriage. The couple avoids the costs of litigation. The mediator tries to facilitate communication between the parties and promote create problem solving to reach an agreeable solution.

Collaborative Divorce: Collaborative divorce is also a process in which the parties reach an agreed solution with professional help while avoiding the cost of court battles. In collaborative divorce each spouse is assisted by a specially trained attorney. Four-way meetings are used to try to reach an agreement. Other neutral specialists, such as accountants or child custody specialists can also be involved.

Mortgage Loan Modification Scams on the Rise

The mortgage crisis has sent millions of homeowners in search of ways to modify their mortgage obligations. Unfortunately, it has also provided a breeding ground for companies bilking distressed homeowners for thousands of dollars in fees for services often available for free. Worse yet, many scam artists simply disappear after collecting their upfront fees from homeowners desperate to prevent foreclosure.

As recently reported by the Washington Post, the mortgage meltdown has given birth to an explosion of companies charging thousands for loan modification services that non-profits offer for free. Federal law does not prohibit companies charging for loan modification services. Instead, patchwork state and local laws govern the practice. Many states require companies offering loan modification services to have licenses. In at least one state (Maryland), companies are forbidden from collecting upfront fees for loan modification services.

Paying thousands up-front for services available for free obviously kicks hurting homeowners while they are down. Less obvious are the implications of time lost if the loan modification service never arrives. The lowest form of mortgage modification scam artist simply disappears after receiving his upfront fee. While the homeowner waits for promised assistance, delinquency notices keep coming. Worse yet, the value of the home continues to plummet while the homeowner waits.

These hucksters prevent distressed homeowners from seeking help where they actually might find it. Hope for homeowners seeking to prevent foreclosure most readily comes either through direct and early contact with the lender or through non-profit services that help homeowners negotiate with their lenders. The U.S. Department of Housing and Urban Development currently sponsors over 2,300 non-profit certified housing counseling agencies around the country.

Microsoft Instructs Zune Owners on Fixing Glitch

Thousands of Microsoft Zune players worldwide were rendered inoperable on December 31st due to a bug in the media player's internal clock, but Microsoft says it has identified the problem and is offering instructions to Zune owners on how to resolve the issue.

According to Reuters, the problem "was caused by an error in the way the device accounts for leap years," and the issue arose on December 31st because 2008 had 366 days. The problem affected Microsoft's "Zune 30," a 30-gigabyte version of the media player manufactured in 2006. Zune owners use the player to listen to music, watch videos, and play games. The device is Microsoft's answer to Apple's iPod.

Microsoft is instructing affected Zune owners to disconnect their Zune from power sources, let the battery drain, and then re-connect the device to a power source. This should resolve any problems related to the internal clock.