Common Law - The FindLaw Consumer Protection Law Blog

February 2009 Archives

Homeowners facing foreclosure are receiving a simple piece of advice to help stall foreclosure: make the other side "produce the note." As it turns out, many lenders seeking to foreclose seem to have lost track of the original promissory notes for the mortgages in question. Though by no means a long term solution, forcing the lender to produce the note can delay foreclosure proceedings and give the lender increased incentive to negotiate.

While securitized bundles of toxic mortgages have been blamed for much of our current economic malaise, there is one bright spot they offer to some homeowners facing foreclosure. When their original lender sold off their mortgage, and it got packaged, sliced and diced into securities sold all over the world, many times the original promissory note got lost in the shuffle.

Along with others, the Consumer Warning Network is actively pushing the "produce the note" strategy as an effective means of delaying foreclosure and creating additional incentive for lenders to renegotiate payment terms.

As described in Consumer Warning Network's How-To, the strategy works as follows:

  1. After you receive notice of a foreclosure suit from a lender who claims to own your mortgage, you file a request, with the court, for production of the original promissory note.
  2. If the lender does not respond in 30 days, you file a motion to compel production of the note. This is a request that the judge order the other side to produce the note.
  3. Most often there will then be a hearing where the judge will decide whether to force them to produce the note or not. Should you win, the lender can't foreclose until they produce the note (which could prove very difficult for them). Should you lose, you would still have had the extra time in the home and perhaps the opportunity to negotiate with the lender.

Consumer Warning Network's How-To includes free forms for requesting production of the promissory note, and also for filing a motion to compel. The group warns against scams offering "produce the note" forms for a fee.

Consumer Warning Network cites an increased tendency in judges to hold lenders to the letter of the law in the surging number of foreclosure cases, including the New York Times report of an Ohio federal judge who threw out 14 cases in 2007 when investors trying to foreclose could not prove ownership. April Charney, head of foreclosure defense for the Jacksonville, Florida Area Legal Aid also uses and strongly advocates the "produce the note" strategy. As reported in the Florida Union Times, she says that for some of her clients, it has put foreclosure on hold for years.

The L.A. Times reports that model-turned-stay-at-home-mom, Monika Zsibrita, has had her civil lawsuit against Chris Rock unsealed by a court. The Times summed up the decade-long background leading up to this case as follows:

"It's been more than a decade since Chris Rock and a shapely blond model struck up a conversation over Sunday brunch at the Four Seasons in Beverly Hills. The relationship that followed was brief -- two dinner dates -- but there seems to be no end to the fallout from the liaison.

The second date led back to Rock's hotel room, which led to sex -- he has said he was separated from his wife at the time -- which led to a paternity suit, then tabloid headlines, an allegation of rape, the hiring of private investigator Anthony Pellicano [of wiretapper to the stars fame/infamy], two DNA tests, a confidential settlement, testimony before a federal jury and, on Thursday, the revelation of a new civil suit."

Yes, after more than 10 years, the Zsibrita would like to make it clear, particularly to "those in her native Hungary", that she's no gold digger and would like to get her side of the story out there for all to see. So what is her side of the story? The lawsuit, which was filed in August 2008, claims "breach of contract and a host of other charges", but the L.A. Times notes "its overarching theme is that the comedian known for his caustic humor is, as Zsibrita called him in a conversation after the hearing, 'a monster'", and she "accuses him of first raping her, then siccing a criminal private investigator on her and finally raining potshots on her on Howard Stern's radio show."

Interestingly, it was the latter "potshots" on Stern's show that may have, in part, contributed to allowing the suit to come to public light. Zsibrita's attorney, Neville Johnson, says she first filed the suit under seal "because she did not want to run afoul of the confidentiality agreement contained in a 2000 settlement of the paternity case." He argued further:

"that Zsibrita should not be bound by the agreement because Rock had talked about her during a 2004 appearance on Stern's show. According to a summary of the show included in court papers, the comedian said that his sexual liaison with Zsibrita was consensual and that he had been set up by a Nigerian hustler who was actually the father of her child."

Although there confidentiality agreements can vary widely in type and enforcement, courts will often not allow a party to enforce a confidentiality agremeent when that same party has been the one spilling the beans in public, because they are the ones breaking the agreement. Indeed, the court in this case apparently agreed with Zsibrita and unsealed the lawsuit, rejecting arguments Rock's lawyers made to the contrary when it noted details about their relationship were already all over the Internet.

As a sidenote, this isn't the first time Chris Rock has faced issues arising from a paternity suit. In 2007, FOX News reported that Kali Bowyer of Georgia filed a paternity suit seeking child support for her then-13-year-old son who she claimed was Rock's son. However, although a DNA test in that case established that Rock was not the father, Bowyer didn't accept the result and Chris Rock ended up suing to try to keep Bowyer from talking or writing about her claim that the comedian fathered her teenage son. Unlike the Szibrita case, however, no confidentiality agreement had been entered into by either party and Bowyer argued it would violate her First Amendment rights to forbid her from talking about her own experiences.

Senate Approves House Seat for District of Columbia

The U.S. Senate on Thursday voted in favor of a bill that would give the District of Columbia a seat in the U.S. House of Representatives, but the bill's ties to local gun issues and a potential constitutional fight over D.C. voting rights mean that the measure is not without controversy.

The Senate's 61-37 approval of the D.C. House seat is expected to be echoed by a "yes" vote in the House of Representatives as early as next week, and President Obama is likely to sign the bill based on past statements indicating his support for the law. The D.C. voting rights bill and a related measure giving Utah an additional seat in the House would raise the number of U.S. House of Representative members from 435 to 437.

The Washington Post reports that the good news stemming from Thursday's Senate vote was tempered for some D.C. officials, as "lawmakers attached language strongly opposed by city leaders that strips most local gun-control laws." According to the Post, "The gun amendment complicates the D.C. vote bill's passage into law, because the legislation will have to be reconciled with a companion bill in the House with no gun provisions that is expected to be approved next week." And 'The Caucus' Blog from the New York Times warns that "a court fight almost definitely looms over the constitutionality of giving the District of Columbia voting privileges in the House that are akin to those of the 50 states."

In line with the Obama Administration's stated goals of transparency and accountability, the White House has launched a new website, Recovery.gov, allowing consumers to track spending under the recently-passed $787 billion stimulus package, and providing up-to-date information on how the money is being spent.

Earlier this month, the American Recovery and Reinvestment Act of 2009 was passed by Congress and signed into law by President Barack Obama. The new Recovery.gov website is intended to be "the main vehicle to provide each and every citizen with the ability to monitor the progress of the recovery," featuring "information on how the Act is working, tools to help you hold the government accountable, and up-to-date data on the expenditure of funds."

Visitors to Recovery.gov can learn more about Where the Money is Going (broken down by spending category); Share a Personal Story about effects of the economy and the recovery efforts; view an Interactive Map Showing Estimated Job Effects state-by-state; Read Up-to-Date Announcements related to stimulus spending; and much more.

Dr. Samim Anghaie, a University of Florida professor and the founder and director of its Innovative Nuclear Space Power and Propulsion Institute (INSPI) may face charges for defrauding NASA out of at least hundreds of thousands of dollars in taxpayer money, according to CNN. Worse, the scheme apparently may have been a family-run operation, as the professor's wife and president of New Era Technologies, Inc. (NETECH), Sousan Anghaie, apparently was key in securing the government contracts, and to top things off, one of their two sons was vice president and director of NETECH.

Right now it looks like authorities are unclear as to how much "innovating" was going on at the family's business with taxpayer money, but FOX News indicated that what authorities are more clear about, according to an affidavit unsealed today, is that research into "propulsion" may have been of a more terrestrial sort as:

"the couple allegedly used most of that money to buy personal luxuries — including their $480,000 home in Gainesville, a 2007 BMW and a 2005 Toyota Sienna sports van.

They also used that money to buy a property for their son in Tampa, Fla., a property for their other son in Manchester, Conn., a 2008 Toyota Corolla for Sousan Anghaie's sister, and a 2007 Toyota Corolla for another family member."

CNN reported that the fruad may have involved large amounts and multiple government contracts as:

"investigators from the FBI and NASA said that since 1999, the government has awarded 13 contracts to the couple's company, New Era Technology Inc. (NETECH), and deposited $3.4 million into the company's corporate account."

Authorities suggest that the scheme involved submitting fraudulent certified contract proposals to NASA (in order to maximize payments made to the Anghaies), and thereafter the couple would submit "fraudulent invoices to reimburse payments to 'alleged employees,' which ultimately resulted in the government overpaying the company". Specifically, CNN noted:

"The money was allegedly diverted to personal accounts through the intentional overpayment of employees, including Samim Anghaie, or the payments made to 'illegitimate' employees, including the two sons"

This certainly wouldn't be the first time NASA has been defrauded, whether it be by contractors, or even its own employees. However, it might be that the Anghaie case could raise questions of how much, if any, oversight of the contracts and contractors is going on and to what degree it should be improved. On the other hand, compared to major federal contractors and their instances and magnitude of misconduct, this case might just be small potatoes in the big picture of oversight.

Last August, a car driven by actor Morgan Freeman ran off the road in Mississippi. Today, his passenger, Demaris Meyer sued Freeman in federal court for injuries she suffered in the accident.

Ms. Meyer clarified at a press conference this afternoon that she was not Mr. Freeman's mistress, according to the LA Times Dish Rag. The actor was going through divorce from his long-time wife at the time of the accident. Ms. Meyer reportedly met Freeman that evening at a dinner party. Her complaint alleges that he ran off the road while driving her car to his home, where she had accepted an offer to stay (in a separate house on his property) so as to have an easier drive to work the next morning.

In her complaint, Ms. Meyer claims that Freeman was drinking throughout the evening in question. She seeks recovery for injuries including a broken wrist, torn shoulder labrum, pulmonary contusions and cervical strain. She also claims cognitive damage to her short term memory, mental anguish and emotional distress which have prevented her from returning to work.

Outside of scrutiny into who rides in your car late at night, Ms. Meyer's suit against Morgan Freeman reminds us of the liabilities to passengers that auto accidents can bring. In the past, many states had what were known as automobile guest statutes. These laws made it so that non-paying passengers could not recover from a driver after an accident unless the driver showed gross negligence or even wantonness (such as drunk driving, drag racing or intentional crashing).

Now, almost all states which had guest statutes have repealed them, or had them ruled unconstitutional by state courts. This means that simple negligence is enough to make drivers liable to their non-paying passengers. Instead of the extreme behavior required by older guest statutes, most states now require only that the driver failed to exercise ordinary care and that through this negligence caused injury to someone else.

The Supreme Court today ruled that a small religious group, Summum, can't make a Utah city put up a monument containing "the Seven Aphorisms of SUMMUM," a granite marker that the group donated to a public park. For anyone already asking "Huh?!?" Summum indicates the "Aphorisms" were written on stone tablets received by Moses with the Ten Commandments which "held very profound and deep meanings." However, Moses destroyed those tablets because people "were in no way ready for them". Actually, Summum suggests that "[t]oday, just as then, many people are not ready to understand the aphorisms carved on those first tablets", but it seems that didn't stop it from suing the city of Pleasant Grove to put up the monument.

As happens in many public parks, Pleasant Grove's park was home to other monuments, which the court described:

"The Park currently contains 15 permanent displays, at least 11 of which were donated by private groups or individuals. These include an historic granary, a wishing well, the City's first fire station, a September 11 monument, and a Ten Commandments monument donated by the Fraternal Order of Eagles in 1971."

Summum took aim in particular at the Ten Commandments monument in the park, as it had apparently had some previous success in challenging Ten Commandments displays in other Utah cities (those cities chose to take down their Ten Commandments displays, as opposed to raising Summum's).

Typically, courts have looked at a public park or a similar area as a "public forum" where freedom of speech is especially protected. Based on this very argument, Summum had actually won its case in the Court of Appeals below. However, today the Court indicated that there's a difference between showing up at a park and speaking your mind (or carrying around a banner), on one hand, and forcing a city to plant a monument, on the other. It its own words:

"Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure."

Another, more practical concern of making governments consider all donated monuments equally without regard to their expressed views, is that governments may have to either "'brace themselves for an influx of clutter' or face the pressure to remove longstanding and cherished monuments." As a result, "the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause."

So does this mean that local governments can go ahead and start throwing up anything they want in public parks? Not entirely, because the government does face a number of other constitutional and legal restrictions. When looking at cases like Summum's which have some religious context, a party is still free to argue that the government violated the Establishment Clause if it appears to be promoting certain religions or religious messages to the exclusion of others. As noted by the Supreme Court, the electorate and the political process also play a role in holding governments accountable for their decisions in these matters, as well as in changing them in the future.

Gun manufacturer Smith & Wesson is recalling two of its popular pistol models due to a worst-case-scenario kind of defect: one that could cause the guns to go off without the trigger being pulled.

According to a Smith & Wesson Safety Recall Notice, the company has identified a defect in certain Walther PPK and PPK/S pistols that could cause a chambered round to fire when the pistol's hammer is lowered, even without the trigger being pulled. Smith & Wesson is advising owners of affected Walther pistols to stop using the guns at once, and to return them to Smith & Wesson for installation of a new hammer block that will remedy the defect.

The recall applies to all Walther PPK and PPK/S pistols manufactured from March 2002 until February of this year. The Walther PPK has gained popularity with handgun owners over the years since being featured as James Bond's sidearm of choice in many 007 films. See the Smith & Wesson Safety Recall Notice for detailed information on the recall, including serial numbers of affected pistols.

According to the Boston Herald, Smith & Wesson’s in-house engineers discovered the problem during routine firearm testing, and the company has received no reports of any injuries caused by the defect. But, the newspaper reports, "Granite City, Ill., police officer Jeremy Hunter sued the gunmaker last fall over wounds sustained in 2006 when his PPK/S allegedly went off on its own," while Smith & Wesson denies any responsibility for the incident.

An appeals court has rejected a lower court's decision in a legal malpractice case awarding Tae Bo founder Billy Blanks nearly $30 million in compensatory and punitive damages, plus interest against his former attorney, William H. Lancaster, and his law firm, Seyfarth Shaw, LLP.

For those who might have missed out on the numerous TV ads and promo's which were prominent during the late 1990's, Billy Blanks is the guy who developed the fitness routine known as "Tae Bo". Named after both taekwondo and boxing, Tae Bo was both popular (and remains so) and very lucrative. However, as can sometimes be the case, out of success came litigation.

For Billy Blanks, the legal problems arose after his former accountant, Jeffrey Greenfield, ended up becoming his agent and manager while Tae Bo was on the rise. Not one to miss a golden goose, Greenfield convinced Blanks to fire the William Morris Agency, and graciously offered to resign his accounting day job in exchange for a "partnership", wherein Greenfield would oversee all of Blanks' business interests and receive one-third of all of Blanks's income (which would rise to almost half in 5 years). Blanks resisted, but informally agreed to a trial period for Greenfield to prove himself as an agent and business manager.

Luckily, Blanks' wife was not keen on Mr. Greenfield's take or his services, and the relationship soon soured. Not so luckily, however, Greenfield already had over $10 million of Blanks' money. But the Blanks got good news when they were told that Greenfield was not a licensed talent agent at any time during the parties' relationship. This meant that under a California law known as the Talent Agencies Act, Blanks could pursue Greenfield for the money he'd been paid while acting as an unlicensed agent.

Although it might have sounded like an open and shut case, the law firm Blanks hired to pursue Greenfield filed suit in the wrong place and the Blanks missed their deadline to recover the sums they paid Greenfield via the Labor Commissioner. Having no option to go after Greenfield, Blanks instead pursued his former law firm for legal malpractice. This is typically challenging because a plaintiff has to prove both: 1) that the lawyer or firm was negligent; and 2) that had the firm/attorney not been negligent, they would have been successful in pursuing the underlying case and would have recovered damages. However, a jury agreed with Blanks after a lengthy six week trial and awarded him the $10 million he should have gotten from Greenfield, plus $15 million in punitive damages for the firm's misconduct.

However, an appeals court on Friday sent the case back to the trial court because it improperly instructed the jury about how to deal with the contract between Greenfield and Blanks, and also because it should have allowed the jury to decide whether the law firm was negligent (the court decided that issue itself). As a result, it looks like a few more legal kicks and punches are going to have to be thrown before this case is knocked out.

In the wake of the recent salmonella outbreak related to peanuts, lawmakers are calling for a new federal agency to oversee food safety. Suggestions range from splitting the Food and Drug Administration (FDA) into two agencies to creating a new agency that would combine pieces from the different agencies that currently attempt to oversee food safety.

The Atlanta Journal Constitution reports that 650 people in 44 states have been sickened, and at least 9 have died, due to salmonella from peanut products. Currently, two Peanut Corporation of America processing plants (one in Georgia and one in Texas) are being investigated as potential sources of the outbreak.

Oversight of food safety is primarily split between the Department of Agriculture (USDA) (which regulates meat, poultry and eggs) and the FDA (which regulates seafood, produce and many other foods).

As the AP reports, Connecticut Representative Rosa DeLauro sponsored a bill that would split out the food related functions of the FDA into a separate food safety agency. Senator Dick Durbin from Illinois has put forth similar legislation in the Senate.

Going further, new Secretary Agriculture Tom Vilsack would combine the food safety responsibilities currently held by the FDA and the USDA into a single agency. As reported in AgWeek, Vilsak recently told the U.S. Rice Federation that "[w]e are the only industrial nation to have two systems." The New York Times quotes Vilsack as saying, "[n]o matter how you slice it, the systems are different. The coordination is not what it needs to be."

While a unified agency won’t help with the current salmonella outbreak or peanut product recalls, perhaps more centralized governmental focus will in the future lead to safer foods.

Ticketmaster and New Jersey's Attorney General have reached an agreement to settle charges over the company's online sale of tickets to two Bruce Springsteen concerts set for May, including allegations that customers were charged for transactions that were never completed, and that buyers were directly referred to a more expensive Ticketmaster subsidiary's website.

New Jersey's state Division of Consumer Affairs had received more than 2,000 complaints related to Ticketmaster's sale of tickets to the Bruce Springsteen and the E Street Band concerts at New Jersey's Meadowlands on May 21 and 23. Most of the complaints fell into two categories: 1) customers' credit cards were charged for ticket purchases even when transactions failed due to technical problems with the Ticketmaster website; and 2) ticket buyers were re-directed from Ticketmaster's “No Tickets Found” page to TicketsNow.Com (a subsidiary wholly-owned by Ticketmaster, where tickets were offered at scalper-rate prices.

The agreement announced Monday "creates a random drawing for 1,000 consumers to purchase two tickets each to one of the two concerts scheduled for May," and "those consumers who filed complaints but are not chosen in the random drawing for the opportunity to purchase tickets to the May concerts will be given a $100 Ticketmaster gift certificate and will be given the opportunity to purchase two tickets to a future Springsteen concert in New Jersey prior to a general ticket sale," according to a News Release from New Jersey Attorney General Anne Milgram.

The New Jersey Star-Ledger reports that "Among the new revelations from Milgram's office was a special advertising deal Ticketmaster had with Google in which consumers who searched for Ticketmaster were referred instead to TicketsNow, where tickets are sold at scalpers' prices."

Last Saturday, Nicky Hilton, sister of Paris Hilton, performed a citizen's arrest on a man who allegedly pushed her outside an IHOP. The celebutante's foray into crime-fighting, and recent attempted citizen's arrests of Karl Rove, spark the question: are citizen's arrests really legal?

MSNBC reports that a fifty year old man named Michael Broadhurst allegedly pushed Nicky Hilton as she was leaving a West Hollywood IHOP at around 5am on Saturday morning. According to NBC Los Angeles, Hilton proceeded to inform the man that she was placing him under citizen's arrest before a deputy dining in the IHOP came out to assist.

Since 2007, Karl Rove has (at least) three times been the subject of attempted citizen's arrests. In Iowa last July, a group of four attempted to place him under citizen's arrest when he went to Des Moines to speak at a fundraiser. As it would turn out, the four would be citizen-constables were themselves arrested. They were subsequently cited for trespassing and released. The Cedar Rapids Gazette reported that two of the four had attempted a citizen's arrest of Rove one year previously. That time they were also arrested, but were released without charges.

In October, a Code Pink protester in San Francisco tried to slap the cuffs on Rove for treason while he participated in a panel discussion for the Mortgage Bankers Association's annual convention. Code Pink's official release on the incident (which contains the Arrest Complaint against Rove) states that five protesters were removed from the building but not charged.

So, can people legally perform citizen's arrests? The short answer is yes. In virtually all states, private individuals can lawfully arrest someone whom they witness committing a felony. States differ, however, in the extent to which they allow such arrests for lesser crimes and whether they allow citizen's arrests when the crime was not directly witnessed by the arresting individual. 

For example, under the California Penal Code Section 837, which governs the arrest by Nicky Hilton, a private person may arrest someone:

  1. for a public offense committed or attempted in his presence,
  2. when the person arrested has committed a felony, although not in his presence, or
  3. when a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

In addition to considering their own safety, anyone thinking about making a citizen's arrest should first learn their state's law regarding allowable arrests. They should also remember that citizen's arrests without adequate cause, which violate the rights of the arrested, or which result in injury can bring criminal and/or civil penalties down on the citizen law enforcer.

The AP is reporting that Chicago attorney Fredrick Goings has been charged with first degree murder over the fatal shooting of "the former girlfriend and infant daughter of New York Knicks player Eddy Curry during a domestic-related dispute." The shooting of 24-year-old Nova Henry and her 9-month-old daughter Ava, which occurred late last month, generated widespread news coverage, but the arrest was made just last Friday.

The AP's story noted that:

"Goings was arrested Friday evening as he was getting into his car outside a relative's place in Chicago. Goings has not made any statements to authorities and is not cooperating in the investigation..."

Police told the AP that apparently Goings was representing Henry in a paternity case with Eddy Curry involving Ava, but the two also carried on a personal relationship:

"Police said Goings and Henry had 'a relationship' and the motive for the shooting was 'domestic related' but declined to elaborate.

According to police, Nova Henry let Goings into the apartment on Jan. 24 and the two quarreled.

'What happened inside that apartment will have to come out at a later date,' Walsh told reporters Sunday. 'There obviously was an argument.'"

Although its likely among the least of Goings' concerns, it should be noted that personal relationships between a lawyer and client can sometimes reach the point of being a breach of professional ethics for the attorney. Many jurisdictions have ethics rules prohibiting (to varying extents) sexual relationships between lawyers and clients. Such rules are designed to promote professionalism and the "emotional detachment" which is an important part of doing a lawyer's job. Additionally, intimate relationships are often considered to represent threats to a lawyer's duties to remain free of conflicts of interest with their client and to maintain their confidentiality. These concerns are heightened in divorce cases, where clients are usually considered to be particularly emotionally vulnerable, and where clients often communicate highly sensitive personal information with their attorneys.

In Illinois, there currently is a proposed rule under consideration that would explicitly make such relationships improper. Regardless, even without such a rule, attorneys in Illinois have been found to violate other, more general rules of misconduct for such behavior. Finally, it should be noted that the facts surrounding this case remain unclear, and according to online records, 36-year-old Fredrick Goings was admitted to the bar relatively recently, in April of 2005, and has no disciplinary record.

A California law that places sale restrictions and labeling requirements on certain violent video games is unconstitutionally broad and violates free speech guarantees, according to a federal appeals court decision issued Friday.

The 2005 California law prohibits the sale or rental of "violent video games" to minors under 18 years of age, and requires that such games be distributed with a prominent "18" label on their packaging. A constitutional challenge to the law was brought by a number of companies that create, manufacturer, and distribute video games. In Friday's unanimous decision, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit concluded that "the State has not produced substantial evidence that supports the Legislature's conclusion that violent video games cause psychological or neurological harm to minors. Even if it did, the Act is not narrowly tailored to prevent that harm and there remain less restrictive means of forwarding the State's purported interests, such as the improved [software] rating system, enhanced educational campaigns, and parental controls." Furthermore, the court concluded, the labeling requirement constitutes impermissibly compelled speech under the First Amendment.

Reuters reports that Friday's decision, in which the court "found that the labeling requirement unfairly forces video games to carry 'the state's controversial opinion' about which games are violent," may have "a far-reaching impact on efforts by other states to establish mandatory video game labeling requirements."

Unless someone has a rather extreme sense of civic duty, it's probably safe to say that just about no one likes being slapped with a new tax. With that in mind, Transportation Secretary Ray LaHood probably didn't win over many fans in discussing the possibility of taxing motorists based on how many miles they have driven, as opposed to how much gas they use.

The reason? In an interview with the AP, LaHood explained that the "[g]asoline taxes that for nearly half a century have paid for the federal share of highway and bridge construction can no longer be counted on to raise enough money to keep the nation's transportation system moving." As a result, long distance commuters and road trippers could end up footing some extra taxes, which might need to be significant in order to repair America's borderline-failing road infrastructure.

Car owners or businesses that bought hybrids or alternative fuel vehicles might be particularly incensed, considering that sometimes state tax incentives were part of the reason they bought such vehicles. The AP piece noted that some motorists argue such a plan "eliminates an incentive to drive more fuel-efficient cars since gas guzzlers will be taxed at the same rate as fuel sippers." On the other hand, unless hybrid vehicle owners enjoy battering their vehicles on dilapidated roads, there might not be a better choice. 

Actually, ironically, one of the reasons for the shortfall from the current gas tax is consumers' "switch to more fuel-efficient cars and a decrease in driving that many transportation experts believe is related to the economic downturn." Further, its likely only going to get worse as "[e]lectric cars and alternative-fuel vehicles that don't use gasoline...start penetrating the market in greater numbers," as is expected.

Another legal wrinkle raised by the concept of a tax for mileage would be how to keep track of a taxpayer's mileage. Massachusetts and Oregon, for example, are exploring plans which would use GPS chips in vehicles to charge motorists by the mile. However, opponents clamor that having such a device in people's cars would raise serious privacy concerns since satellites could essentially track a driver's every move.

UPDATE: In recent developments, LaHood's proposal was shot down by President Obama's chief spokesman, Robert Gibbs, who told the AP "President Barack Obama will not adopt a policy to tax motorists based on how many miles they drive instead of how much gasoline they buy." But even if a mileage tax is not adopted as a national policy, this would not necessarily affect individual states' consideration of the matter.

A federal judge on Wednesday denied class action status to a consumer lawsuit over Microsoft's advertising of certain PCs as "capable" of running the company's Vista operating system.

Plaintiffs in the case argue that a 2006 Microsoft Corporation marketing campaign, in which "Windows Vista Capable" stickers were affixed to certain manufacturers' PCs, was misleading because many of the computers could run only a no-frills version of Vista (not the "Premium Vista" version that offers a number of desirable features). In Wednesday's ruling, a federal judge in Washington held that the plaintiffs could not show an overall change in consumer demand for the "Vista Capable" PCs based on Microsoft's allegedly deceptive marketing claims. Such "commonality" of harm is necessary in order for a lawsuit to go forward as a class action. The ruling made clear that the plaintiffs' claims can proceed on a case-by-case basis.

According to the Seattle Post-Intelligencer, "the decertification of the lawsuit lifts a burden for Microsoft, which could have faced major damages in a class-action lawsuit, considering that consumers are estimated to have spent as much as $1.5 billion on PCs with the 'Vista Capable' label."


FDA officials have received three confirmed reports, and a forth possible report, of dangerous brain infections in patients treated with Genentech's psoriasis drug Raptiva. With three of these four already dead, the FDA has issued an updated safety advisory for Raptiva and is reviewing the latest information.

According to the FDA's updated safety release, the FDA approved Raptiva in 2003. What has regulators concerned now is the link between Raptiva and a deadly type of brain condition called progressive multifocal leukoencephalopathy (PML). As described by the FDA, PML is a "rare, serious, progressive neurologic disease caused by a virus that affects the central nervous system." It occurs usually in people with severely weakened immune systems and often causes irreversible decline in brain function and death. It has no known effective treatment.

In October, the FDA added a black box warning, its highest level of warning, for Raptiva over the risk of PML. "It appears increasingly likely that the FDA will ultimately pull Raptiva from the market," industry analyst Geoff Porges told Bloomberg.

Raptiva also faces likely removal from European markets. As the Wall Street Journal reports, today Europe's primary medical regulator urged the suspension of sales of Raptiva. Bloomberg quotes an email from one European regulator as saying that "prescribers should not issue any new prescriptions for Raptiva and should review the treatment of patients currently receiving the medicine to assess the most appropriate alternatives."

Here, regulators advise that patients using Raptiva should:

  • Talk with their healthcare provider about the benefits and risks of treatment with Raptiva;
  • Be aware of the symptoms of PML which may include unusual weakness, loss of coordination, changes in vision, difficulty speaking and sometimes personality changes;
  • Contact their healthcare provider immediately if they experience these symptoms; and
  • Understand that there are no laboratory screening tests for PML or medical interventions that can prevent or treat PML.

The FDA states that it is analyzing the latest information on PML in patients taking Raptiva and promises to "take appropriate steps to ensure that the risks of Raptiva do not outweigh its benefits."

For people who get angry when they hear about someone suing for getting burned by their morning coffee, or getting injured undertaking an extreme sport, etc., etc., a story came out yesterday that might add to their frustration.

CNN reports that a Manhattan jury awarded $2.33 million to Dustin Dibble, who lost his leg after drunkenly stumbling onto the path of an oncoming subway train. The story gave the following background, stating that Dibble fell and "landed in the subway tracks after a late night watching a hockey game at a bar with friends April 23, 2006. A downtown N train ran over him, severing his right leg." The conductor apparently mistook Dibble for "an inert object", whatever that might have been.

Although the result in the case might be offensive to some at first sight, the case does bring up some interesting policy questions for debate. For instance, if one were to say that Dibble was entirely at fault, would it have been preferable to have him behind the wheel of a car? It could be (and perhaps was) argued that he was being responsible by taking public transportation instead of driving, in the first place. Alternatively, should he have taken a cab? If so, would he have all the blame if he drunkenly got hit by a cab while hailing it? One response would be that perhaps Dibble should have chosen to stop drinking before he hit a .18 BAC, but in the end these are all issues the jury (composed of our peers) likely faced when making its decision. Sometimes awards that seem incomprehensible at first glance end up, at least arguably, having a more rational basis.

It should be noted that the jury in this case was not entirely unsympathetic to NYC Transit, finding that Dibble was 35 percent responsible for his own injuries and damages, which reduced the award "from $3,594,943 to $2,336,713." In this case, the jury did not absolve Dibble of fault, but it did apparently buy into arguments that the train conductor was trained to stop the train, and had time to do so, when he saw him on the tracks.

In the end, the Metropolitan Transit Authority (MTA) has signalled that it intends to appeal the result, so it looks the suit will keep rolling for a while longer.

Scientific evidence that is used to support many courtroom claims in criminal cases -- evidence that can lead to a criminal defendant's conviction or acquittal -- suffers from a lack of reliability and consistency, and the nation's crime labs need a scientific overhaul, according to a new study.

The National Academy of Sciences released its congressionally-mandated report Strengthening Forensic Science in the U.S. - A Path Forward, on Wednesday. According to an NAS News Release, the study finds that, although forensic science is often used to "match" a piece of evidence to a person or weapon, "with the exception of nuclear DNA analysis, . . . no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." The report stresses the need for "strong standards and protocols for analyzing and reporting on evidence" to correct the "badly-fragmented" forensic science systems in the nation's crime labs.

According to the Los Angeles Times, "the report could have a broad impact on crime labs and the courts, ushering in changes at least as significant as those generated by the advent of DNA evidence two decades ago," but meanwhile "the findings are expected to unleash a flood of new legal challenges by defense attorneys."

As part of his strategy for economic recovery, today President Obama unveiled his plan to help stem the explosion in home foreclosures. Dubbed the "Homeowner Affordability and Stability Plan," it aims to prevent millions of US homeowners from losing their homes by providing refinancing, encouraging lenders to modify mortgages, allowing court ordered mortgage modifications in bankruptcy, and by providing $200 in additional capital to Fannie Mae and Freddie Mac.

As reported in the New York Times, Obama's plan targets two groups of homeowners: 1) owner-occupants current on mortgages but unable to find refinancing to a lower rate; and 2) owner-occupants unable to keep up and in danger of foreclosure. The plan's details will be published when it goes into effect on March 4.

For those still current and able to pay on their mortages, but with high interest rates, Obama's plan offers increased access to refinancing. This refinancing will be available only for mortgages held or securitized by Fannie Mae or Freddie Mac. It will include some "under water" mortgages, where the amount owed is more than the current value of the home. As Obama noted in his remarks, Fannie Mae and Freddie Mac currently do not guarantee refinancing when the mortgage amount is 80% or more of the home value. Under the new plan, mortgages up to 105% of the home value will be eligible. Refinanced loans will be at a 30 or 15 year fixed rates with no penalties for prepayment or balloon notes. To find out if your mortgage qualifies, the White House Q&A website on the plan recommends contacting your lender on March 4, when the plan takes effect.

For those in more dire straits, the plan includes $75 billion to encourage lenders to modify owner-occupied first mortgages. According to the White House's website, homeowners need not be behind on their mortgages to qualify, but must be at risk of eminent default. If homeowners who modify stay current, they will get $1000 per year toward their mortgage for up to five years. As detailed in the Times report, such modification is optional for the lenders, who first must agree to modify the mortgage so payments are no more than 38% of the homeowner's income. From that point, the government would match, dollar for dollar, all reductions until payments are as low as 31% of homeowner income. As the White House website indicates, participating lenders are likely to modify interest rates on the mortgages, but at their discretion can include modification of the principal loan amount. Additional fees (paid by the government) would also encourage lenders to participate. Many lenders will identify and contact potentially eligible homeowners after March 4. If you do not receive a letter and believe your mortgage qualifies, contact your lender or a HUD approved housing counselor.

To help them maintain mortgage affordability going forward, the plan also calls for Fannie Mae and Freddie Mac to receive an additional $200 billion.

For "under water" homeowners whose lenders refuse to modify, the Obama plan offers to change bankruptcy rules so that judges can order loan modifications. As noted in a Fact Sheet released about the plan, to be eligible for such a "cramdown" modification (where the loan amount is lowered toward current home value), homeowners must have previously requested modification from their lenders. As noted by the Washington Post, such changes to the bankruptcy code would require legislation from Congress, where Republicans fiercely oppose it, as do financial services industry representatives.

During the ongoing and increasingly prolonged recession, concerns about the increasing instances and motivations for elder abuse have been on the rise. But in a story that might end up being one of classic, unadulterated greed, CNN reported today on the criminal trial of famous socialite and philanthropist Brooke Astor's son, Anthony "Tony" Marshall, which is about to begin with jury selection scheduled for next Monday.

Tony Marshall was indicted in 2007 on criminal charges that included grand larceny, possession of stolen property, forgery and conspiracy, all of which came to light after Tony's own son, Philip Marshall, raised concerns regarding the possible elder abuse of his grandmother. It was because of those worries that, in 2006, Philip successfully petitioned for guardianship to transfer the care of Brooke Astor from Tony to her "dear friend" Annette de la Renta (the wife of designer Oscar de la Renta). The guardianship battle had some consequences, which as noted by the CNN piece, were not what Philip Marshall expected:

"The practicing Tibetan Buddhist, who is a professor of historic preservation at Roger Williams University in Rhode Island, never anticipated the findings that led to his father's indictment and said he merely wanted to "provide my grandmother with the care, comfort and dignity she deserved."

Further:

"he wouldn't discuss the details that prompted his actions -- 'I won't survive this conversation if I do,' he said -- the successful petition mentioned her sleeping in torn nightgowns on a urine-stained couch and eating bland leftovers."

Although "bland leftovers", in many circles, might not usually raise too many eyebrows, other allegations apparently did raise enough concern to eventually lead to the indictment, which included not only Astor's son but also his attorney, Francis Morrissey Jr, and alleged that they had conspired to defraud and steal millions of dollars from an Astor trust and her estate. In an earlier report on the indictment, the New York Times noted that these were not the only charges of misconduct Morrissey has faced.

But, despite the sordid details, the same story did report on findings in the civil case which concluded that the claims of elder abuse "were unsubstantiated." However, a conclusion to the ongoing legal proceedings is not yet in sight, as CNN reported that many friends and staff members "will be involved in a later suit to contest Astor's will, which her son is said to have changed."

In the end, many more details and disclosures are expected to be spilled out during the course of the upcoming trial. As noted by CNN, this might be yet another tragic footnote in the sense that Brooke Astor was a "very private" person who certainly would not have wanted to see the inevitable tabloid "feeding frenzy."

CVS to Pay $2.25M Over Patient Privacy Probe

CVS Caremark, operator of the largest pharmacy chain in the U.S., will pay $2.25M to settle claims that it failed to protect the sensitive medical and financial information of its pharmacy customers and store employees. As part of the settlement, the company has agreed to adopt new practices intended to prevent future privacy violations.

According to a Federal Trade Commission (FTC) News Release issued Wednesday, some of CVS Caremark's more than 6,000 pharmacies disposed of sensitive patient information in open dumpsters -- including empty prescription pill bottles and medication instruction sheets that contained patients' detailed personal and medical information. Many CVS pharmacies also disposed of employment applications and payroll information in the same manner, jeopardizing the privacy of employees and job applicants, according to the FTC.

A related FTC Order requires CVS Caremark to "establish, implement, and maintain a comprehensive information security program designed to protect the security, confidentiality, and integrity of the personal information it collects from consumers and employees." The FTC and the U.S. Department of Health and Human Services had been investigating CVS Caremark for alleged privacy violations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a federal law that requires health care providers and pharmacies to safeguard their patient's medical information.

Police in Stamford, Connecticut shot and killed Travis the chimp, a former "animal actor" living with a local couple. The incident began when Travis mauled a woman visiting his owner, then attacked the police called in to contain him. Travis' rampage and death have renewed calls for federal legislation to forbid interstate commerce in primates as pets.

Hartford's WSFB reports that Travis lived as a pet with his 70 year old owner, Sandra Herold. Fifteen years old when he died, Travis previously starred in TV commercials for Old Navy and Coca-Cola. As for Sandra Herold, "[s]he lived for this chimp," a neighbor told WSFB, "[t]his chimp was like her child."

Travis brutally attacked Charla Nash, a friend of Herold's who came over to help calm the chimp down. He had reportedly been agitated all day. Herold had tried to calm him down with Xanax laced tea, but that didn't work.

After a 2003 incident in which Travis leapt from his owner's SUV and held up traffic, Herold told police that Travis was toilet trained, dressed himself, took his own baths, ate at the table and drank wine from stemmed glassware. Police say he also brushed his own teeth, would log onto the internet to look at pictures, and watched TV with a remote control.

The ownership of chimpanzees as pets is governed primarily through differing state and local laws. MSNBC reports that Connecticut now has strict licensing laws governing the ownership of chimpanzees, but they came into effect after the Herold acquired Travis.

Thomas' tragic demise has caused renewed calls for passage of the Captive Primate Safety Act, which would prohibit interstate commerce in primates as pets. According to the Humane Society's press release, last year the legislation passed the House, but the Senate failed to vote on it.

Whether he should have ever been an actor or a pet, Travis' case also highlights the liability that can flow from the actions of one's pet. States have different laws about liability for injuries inflicted by a pet. Some have strict liability, meaning the owner is liable for injuries committed by the pet with very few exceptions (like a trespassing victim or victim who tormented the animal). Though its statute is specific to dogs, Connecticut is an example of a strict liability state.

In other states, to be liable the owner must have had some reason to know about the pet's dangerous propensities. Animal experts say that all chimps pose serious dangers due to the fact that they are wild animals and grow incredibly strong. "They just get too big. They get too strong," animal trainer Keith Bauer told NBC News. "If you've got them at home, it doesn't matter how long you've had them, how much time you've put in with them, they're gonna blow."

Islamic TV Founder Charged with Murder of Wife Aasiya Hassan

CNN is reporting that authorities have stated that the founder of an Islamic television station in New York, Muzzammil Hassan, has confessed to beheading his wife, Aasiya Hassan. Hassan was arrested last Thursday after police found the the decapitated body of his wife at the "Bridges TV" station in a Buffalo, NY suburb. Police indicated that Hassan went straight over to the police station and confessed after the killing.

Although the headlines might bring to mind other past news stories about "honor killings", a FOX News story may indicate that the basic motive might have crossed cultural boundaries, considering that Aasiya had filed for divorce just last month. FOX quoted Aasiya Hassan's attorney:

"She was very much aware of the potential ramification her filing for divorce might have," said attorney Elizabeth DiPirro, whose law firm, Hogan Willig, represented Aasiya Hassan in the divorce proceeding. "But she wanted to proceed despite the potential for it to erupt."

Indeed, police chief Andrew Benz stated that police had responded to several domestic violence calls at the couple's home, and DiPirro stated the two had "'physical confrontations off and on' for their entire eight-year marriage that had recently escalated to death threats." A recent instance where police involvement was required was on February 6, after Aasiya Hassan obtained an order of protection reportedly barring Muzzammil Hassan from the home.

Some have already noted the irony of this tragic case, considering that Hassan's TV station was aimed at countering Muslim stereotypes. FOX reported on Hassan's own striking words from a prior press release:

"'Every day on television we are barraged by stories of a ‘Muslim extremist, militant, terrorist, or insurgent,’ Hassan said in the 2004 release. 'But the stories that are missing are the countless stories of Muslim tolerance, progress, diversity, service and excellence that Bridges TV hopes to tell.'"

For the moment, however, it appears that Hassan himself has become the news story. He has been charged with second-degree murder, as opposed to first degree murder. A charge of second-degree murder often comes about when police and prosecutors feel a killing was not premeditated, but at the same time was also not done in the "heat of passion" as is sometimes the case with spousal murders. The latter situation usually would involve a charge of voluntary manslaughter.

How to Cope with Job Loss

Losing a job can be a devastating and unexpected experience. It can disrupt stability and force you to worry about things like paying the mortgage and maintaining health insurance coverage. In this difficult economy, those facing job loss or layoff are not alone. The U.S. Department of Labor reported an unemployment rate of 7.6% in January 2009, the highest percentage in fifteen years, with 11.6 million Americans unemployed. In 2008 alone, an estimated 2.6 million jobs were lost--the highest number seen since 1949.

Despite the grim statistics, there is help, and there are networks of support that can ease the situation. If you or someone you know is facing the prospect of job loss or layoff, use the opportunity to become informed about your options, understand your legal rights, and take steps to adapt to the changing times.

FindLaw's New "How to Cope with Job Loss" Feature offers tips on job loss-related topics like severance pay, unemployment compensation eligibility, safeguarding your health insurance, and maintaining financial stability. You'll also find links to resources that can help you take the first steps toward securing your next job.

Some of the nation's largest banks, Citigroup, Bank of America, Wells Fargo, Morgan Stanley and J.P. Morgan Chase, have announced brief moratoriums on mortgage foreclosures. The banks will halt some foreclosure proceedings for about three weeks while the Treasury Department announces and implements a foreclosure prevention plan including loan modification programs. 

Bloomberg reports that the moratoriums came in response to requests from members of Congress. As the Washington Post reported, CEO's from these banks were amongst those grilled this week before the House Financial Services Committee over use of TARP funds, lack of lending and what if anything the banks have done to aid homeowners.

As published in the Wall Street Journal's Washington Wire, Jamie Dimon, CEO of J.P. Morgan Chase, stated in a letter to Represetative Barney Frank stated that the company would not "add the foreclosure process" to owner occupied residential home loans owned or serviced by the company until March 6, giving "adequate time" for announcement and implementation of a new plan from the Treasury Department.

According to Citi's press release, it will not "initiate or complete any new foreclosures" on first mortgages on owner occupied primary residences until "President Barack Obama has finalized the details of the loan modification program or March 12, 2009, whichever is earlier."

The plan they are talking about is to be part of the Financial Stabilization Plan announced this week by Treasury Secretary Timothy Geitner. A fact sheet for the Financial Stabilization Plan states that it will include possibly $1 Trillion to assist in the purchase of toxic assets, $1 Trillion to bolster commercial and consumer lending, and also a foreclosure prevention plan.

The foreclosure prevention component will purportedly include $50 billion to prevent foreclosures in owner-occupied middle class homes through payment reduction, establish loan modification guidelines for government and private programs, expand the base of people who can participate in government loan modification programs, and require those receiving federal stabilization funds to participate in foreclosure mitigation plans.

As reported in the Washington Post, on Tuesday Geitner let Congress know that, "[Obama's economic team] will announce the details of this plan in the next few weeks."

Jury Burns Philip Morris in Stuart Hess Case

In the first phase of a case that may represent the standard for thousands of other similar cases, the AP reported that a jury on Thursday ruled that chain-smoker Stuart Hess's death was caused by his addiction to cigarettes. This ruling represents a serious blow to tobacco giant Philip Morris, which sought to avoid liability in this and related Florida cases.

The jury's decision that Hess did not continue smoking by his own choice was vitally important considering that Philip Morris lawyers had argued that Hess could have quit smoking. A Reuters story noted that the attorney for Elaine Hess, Stuart's widow, said "The next phase is to decide (compensatory) damages and our entitlement to punitive damages," and added "that the jury can assign a percentage of liability to the tobacco company and to the smoker."

Attorneys in the case haven't said how much money they are seeking from Philip Morris but the AP speculated that it would likely be in the millions of dollars.

The reason this case is of particular importance is because it is the first to go to trial since a 2006 Supreme Court of Florida ruling throwing out a $145 billion jury verdict in a class action suit. At that time, the state's high court said that although plaintiffs established that tobacco companies, each of the cases had to be established individually. The AP noted there are about 8,000 other cases that could be affected by a decision, one way or another, in the Hess case.

However, Philip Morris told the press it was not giving up. "'The Hess trial is not over,' said the Richmond, Va.-based company, a unit of Altria Group." Considering the past history of tobacco litigation, particularly with individuals' lawsuits, that could be the last thing someone would expect.

FDA: Stronger Guidelines Needed for Prescription Painkillers

The makers of a number of popular prescription painkillers will need to impose new guidelines and stronger restrictions to prevent abuse and misuse of the drugs, federal health officials announced this week.

On February 6, the U.S. Food and Drug Administration (FDA) sent letters to manufacturers and marketers of certain prescription extended-release pain medications called "opioids". The agency's letters ordered the companies to attend a Risk Evaluation and Mitigation Strategies (REMS) meeting to evaluate whether the benefits of opioids continue to outweigh risks of misuse, abuse and accidental overdose -- problems that have seen marked increases over the last 10 years. The New York Times reports that "[m]any doctors may lose their ability to prescribe 24 popular narcotics as part of [the] new effort to reduce the deaths and injuries that result from these medicines' inappropriate use."

The FDA's REMS invitation letters declare that the March 3 meeting is necessary "to ensure that prescribers, dispensers, and patients are aware of and understand the risks and appropriate use" of prescription opioids like fentanyl (Duragesic patch), methadone, and OxyContin.

According to CNNMoney.com, "FDA officials said they've seen reports of inappropriate prescribing by doctors amid the increase in misuse and abuse, both intentional and unintentional, of the products since they were first approved in the mid-1990s. Active ingredients in the drugs are designed to treat pain for an extended time, such as 12 hours. Drug abusers can tamper with such products and get all the effects of a drug at once, creating a heroin-like high."

This week New Jersey resident Ryan Ward pled guilty to disorderly conduct related to impersonating New York Yankees pitcher Joba Chamberlain. Also this week, a Florida woman's Corvette was stolen and crashed by a man she believed to be a former Foreigner drummer. When does playing on your natural likeness to a celebrity, or on people's dreams of meeting the members of Foreigner, go too far?  

As he told the AP, Ward's spiral began innocently enough--a simple failure to disabuse the mistaken impression by some who encountered him that he was the Yankee pitcher Joba Chamberlain (dubbed "Joba-the-Hot" by the New York Post). As the Belmar, New Jersey prosecutor told the AP, "[h]e bears an uncanny physical likeness to him."

Free drinks and food sent to his table? Sure. Requests for autographs? Why not. Star-struck women believing they were passing the evening with a Yankee fastballer? "There were many," states Ward. A "pretty good" pitcher himself in his teenage years, Ward reportedly drew too much attention to himself by suggesting he was Chamberlain in order to score free bagels. Soon area hot-spots got wise and the jig was up.

In Florida, Eric Hook, operating as "Cory James," one of iconic rock band Foreigner's former drummers, reportedly swept a woman off her feet and out of her Corvette, which he crashed shortly thereafter. As Yahoo News points out, Foreigner "has had more than a half dozen drummers over the years, none of whom were named Cory James."

By no means a Foreigner purist, according to Tampa's WTSP, Mr. Hook has also played Eric Clapton's drummer (who needed to steal a car to pick up Clapton) and Van Halen's manager (who needed to steal a hairstylist's money).

What crimes did these men commit? For Hook, currently there are charges including simple grand theft auto and destruction of property. Whether as a faux Foreigner drummer or simply as yourself, stealing someone's Corvette and wrecking it is a crime (multiple, actually).

Ward pled guilty to disorderly conduct for his Joba Chamberlain performances, but initially faced possible charges for "theft by deception" under New Jersey law. As in many states, in New Jersey, theft by deception means gaining control over someone's property through deception. Deception is defined to encompass several forms, including "failing to correct a false impression which the deceiver previously created or reinforced."

Introducing yourself as Foreigner's old drummer obviously creates a false impression. There is a slippery slope, however, between Ryan Ward's first forays as Joba Chamberlain and Eric Hook's alleged bold-faced Foreigner fakery. It lies in the reinforcement of false impressions--in deciding not to say "I am not Joba Chamberlain."

Autism MMR Vaccine Cases Decided: No Link Shown

Plaintiffs failed to demonstrate that vaccines "played any role at all" in causing their children's autism and other severe conditions, special masters in test cases ruled today.

The cases in the Vaccine Court Omnibus Autism Proceeding involved autistic children of three families, the Cedillos, the Hazlehursts, and the Snyders, whose conditions, the parents argued, were brought on by early childhood vaccinations. According to a Reuters report, the parents "sought payment under the National Vaccine Injury Compensation Program (VICP), a no-fault system that has a $2.5 billion fund built up from a 75-cent-per-dose tax on vaccines."

A story from CNN indicates that by mid-2008 more than 5,300 cases had been filed by parents who believed vaccines may have caused autism in their children and were seeking payment under the VICP. As a result, there was a high degree of attention on the decisions today.

The special master in the Cedillo case, George Hastings, summarized his findings in rejecting a theory that the cause of a child's autism was a measles, mumps and rubella (MMR) vaccine in combination with other vaccines containing thimerosal (a preservative), stating that plaintiffs:

"failed to demonstrate that thimerosal-containing vaccines can contribute to causing immune dysfunction, or that the MMR vaccine can contribute to causing either autism or gastrointestinal dysfunction. I further conclude that while Michelle Cedillo has tragically suffered from autism and other severe conditions, the petitioners have also failed to demonstrate that her vaccinations played any role at all in causing those problems."

The government had argued that plaintiffs' claims linking the vaccines with autism were "not supported by 'good science.'" Indeed, in Hastings' own words "[t]he numerous medical studies concerning these issues, performed by medical scientists worldwide, have come down strongly against the petitioners' contentions." Furthermore, the government's experts on the issue were "far better qualified, far more experienced, and far more persuasive" than those offered by the plaintiffs.

These cases were particularly important in setting the bar on the amount of proof required to establish these kinds of autism claims. As noted by the Reuters piece, "Under the program, someone injured by a vaccine does not have to prove the vaccine actually caused his or her injuries.  All they need to do is establish that vaccines sometimes cause that particular condition or injury, as the three test cases sought to prove. The no-fault payout system is meant to protect vaccine makers from costly lawsuits that drove many out of the vaccine-making business." Nevertheless, today's decisions indicate that even with the relative burden of proof lowered under the program, courts will look for solid evidence that vaccines can cause autism.

Feds Crack Down on Foreclosure Rescue Companies

Federal trade regulators are cracking down on shady companies that promise foreclosure rescue services to homeowners struggling to make mortgage payments and stay in their homes. The Federal Trade Commission (FTC) has filed two key lawsuits in the last month, action meant to help protect thousands of consumers from falling victim to foreclosure rescue scams.

In a press release issued Wednesday, the FTC announced that it has filed a lawsuit against National Foreclosure Relief, Inc. and its officers, charging the Nevada-based corporation with offering a  fraudulent "guaranteed Fresh Start Program" to homeowners who are in danger of foreclosure. According to the FTC complaint, the company charges between $300 and $1,000 for its services and then effectively takes no action to stop foreclosures or act on customers' behalf, instead failing to return phone calls and refusing to refund money even when customers end up losing their homes.

The Los Angeles Times reports that in January, the FTC filed a lawsuit against Florida-based Mortgage Foreclosure Solutions Inc.. The suit alleges that the company offered "foreclosure solutions" to financially-troubled homeowners -- charging as much as $1,200 per customer -- but never actually took any steps to act on behalf of its clients, many of whom ended up losing their homes despite having paid for Mortgage Foreclosure Solutions Inc.'s "guarantee of services."

Learn more about the FTC's latest action against these companies, and how to protect yourself and your home against foreclosure rescue scams:

In a shocking display of judicial corruption, the AP reports that two senior juvenile court judges in a Pennsylvania county have been charged in a kickback scheme which may have resulted in hundreds of juveniles being wrongfully sent to detention centers for minor offenses. The judges, who were recently removed from the bench by the Pennsylvania Supreme Court, are actually scheduled to plead guilty to fraud on Thursday with their agreements calling for "sentences of more than seven years behind bars."

The charges alleged that the judges set up a scheme with two privately operated youth detention centers, in which the judges would send kids off to the detention centers in exchange for what apparently ended up being millions of dollars in kickbacks. A Pennsylvania attorney shared her opinion on the degree of the corruption with the AP:

"I've never encountered, and I don't think that we will in our lifetimes, a case where literally thousands of kids' lives were just tossed aside in order for a couple of judges to make some money," said Marsha Levick, an attorney with the Philadelphia-based Juvenile Law Center, which is representing hundreds of youths sentenced in Wilkes-Barre.

The AP also noted that the scheme was long-running in nature, as well:

For years, youth advocacy groups complained that Ciavarella was ridiculously harsh and ran roughshod over youngsters' constitutional rights. Ciavarella sent a quarter of his juvenile defendants to detention centers from 2002 to 2006, compared with a statewide rate of one in 10.

Interestingly, other reports have pointed out that the misconduct of the judges may not have been limited to juvenile court proceedings. So what's next for the victims of these judges-gone-wild? Suing judges, particularly for money damages, can typically be a challenging endeavor as they enjoy judicial immunity from suit. However, judges are immune only for their judicial functions or acts, and victims could argue that the act of taking money in exchange for sentencing behavior was not a "judicial act", even if a judge's actual rendering of a sentence is. Alternatively, the private detention center operators could be targeted for their part in the scheme, as well. One angry mother has already started a lawsuit based on what happened to her daughter.

As for the juvenile records of the victims, the AP notes that the state's high court "is looking into whether hundreds or even thousands of sentences should be overturned and the juveniles' records expunged."

The closure of crime labs in multiple states has created a backlog in criminal cases. At a time when crime labs are overloaded and unable to keep up, a report soon to be released from the National Academy of Sciences appears likely to critique the lack of science behind many long practiced forensic techniques.

Even before the financial crisis hit their budgets, state and local crime labs had problems.  The DNA section of the Houston Police Department Crime Lab had to be suspended in 2002, after an independent investigator found that lab analysts had skewed results to fit police theories in several cases.

Four months ago, as reported by the Detroit Free Press, the Detroit Police Department ceased all of its crime lab activities after an audit revealed a 10% error rate in ballistics tests. Now, unfortunately, the other crime labs in the state are under deluge. Crime lab work for Detroit is going to backlogged state labs. Other towns and cities within Michigan see the backlog at state labs and send their work to county labs also trying to keep up. One county sheriff told state lawmakers that they face an "Armageddon."

The Baltimore Sun reports that an audit of the Baltimore crime lab concluded that it suffers from under-staffing, long out of order equipment, faulty paperwork, and storage rooms causing evidence to degrade due to warmth.

Onto this mess of backlogs and questioned scientific competence comes an upcoming report, to be released this month by the National Academy of Sciences (NAS), according to the New York Times. Congress asked the NAS to assess the state of forensic techniques in 2005. Those familiar with the report say it harshly criticizes often used identification techniques including fingerprinting, firearms identification and analysis of blood spatter, hair, handwriting and bite marks. It concludes with a recommendation that Congress create an agency to affirm the independence of forensic testing.

While Congress may or may not act on any NAS recommendations, it looks as if the NAS report will provide defense attorneys with additional ammunition to challenge the evidence coming through overstressed and sometimes discredited crime labs.

In the latest news smearing proverbial pine tar all over the face of baseball's dignity, the New York Daily News and FOX Sports are reporting that former New York Mets star Roberto Alomar has been sued for $15 million for having "unprotected sex with his ex-girlfriend while he had full blown AIDS". Ilya Dall, of Queens, claims she "lived with the ex-Met for three years and watched in horror as his health worsened."

Alomar's lawyer, would neither confirm nor deny that the former player is HIV-positive, but did tell the New York Daily News that:

"We believe this is a totally frivolous lawsuit. These allegations are baseless," Bach said. "He's healthy and would like to keep his health status private. We'll do our talking in court."

This is not the first time someone has been brought into court by such claims. So what exactly is the law on these types of AIDS cases? The answer is that it's going to vary from state to state. The law on what are sometimes termed "STD lawsuits" is still being outlined in many places. For example, in 2006 California's highest court ruled that people who pass on the AIDS virus, even unknowingly, can be sued. This might seem a bit extreme, but the standard established in that case is that if someone knows or has reason to know of their being infected, then it is possible that they can be held liable. Indeed, most jurisdictions do not limit a person's liability to circumstances where they actually knew they had an STD such as AIDS. Also, people should be aware that misrepresentations regarding whether they are disease free, and whether they are monogamous, can play a factor in these types of cases.

The New York case against Alomar, however, is taking the claim a step further because Ilya Dall has, since the couple's breakup, tested negative for AIDS. So what's her problem? The $15 million she's suing for is actually based on "emotional distress" stemming from her fear of contracting AIDS, or in her own words the fact that "[h]e jeopardized the health, well-being and life of the plaintiff, which caused her to have a fear of contracting AIDS, often referred to as AIDS phobia." This might raise a few eyebrows, but these kinds of AIDS-phobia cases are not without precedent and are actually clearly viable in New York. The state's high court recently eliminated a six-month cutoff period for recovering damages in AIDS-phobia cases.

Although in other jurisdictions the viability of AIDS-phobia lawsuits, particularly for someone who has tested negative, might be questionable, it's a good practice for individuals to ensure they make responsible decisions regarding their health, so as to stay informed, and to provide accurate information to their partner.

Some Big Pickups Not Big on Safety, Crash Tests Show

You've seen the commercials. A big brute of a pickup truck tows a cluster of boulders through a wall of fire, as a deep-voiced announcer touts the truck's strength. Even the minute disclaimer at the bottom of the screen warns you that you're not tough enough to try this. But results of a new crash test study show that a number of large pickup trucks aren't even as safe as most cars when it comes to providing protection in side-impact crashes.

The Chevy Silverado 1500, Dodge Ram 1500, GMC Sierra 1500, and Nissan Titan large pickup trucks all earned "poor" or "marginal" ratings in side-impact crash tests perormed by the Insurance Institute for Highway Safety (IIHS), the organization announced Wednesday. "The size, weight, and height of these large pickups should help them ace the side tests just like the other large pickups we've tested. Not these three. They perform worse than many cars we've evaluated," IIHS senior vice president David Zuby stated in an IIHS News Release issued Wednesday.

In contrast, a number of popular large pickups managed to perform well in the IIHS's side-impact crash tests, including the Ford F-150, Honda Ridgeline, and Toyota Tundra, all of which earned a rating of "good" and the IIHS's "Top Safety Pick" award for 2009. The IIHS side-impact evaluations are based on crash tests in which a vehicle's side is struck by a barrier moving at 31 miles per hour. "Injuries" are measured on test dummies, and the vehicle's structural performance is assessed, according to IIHS.

Today, increased federal prohibition on the manufacture and sale of toys containing certain levels of phthalates or lead went into effect. A court battle clarified last week that the phthalates ban applies to existing inventory. This means that as of now, retailers selling such toys violate federal law. However, the level of phthalates in many toys remains unknown.

According to the Center for Disease Control, phthalates are chemicals used in the manufacture of plastics. They can increase plastic's durability and flexibility. Phthalates are used in an enormous range of products—from PVC piping to cosmetics to kids' toys.

As the San Francisco Chronicle reported, Congress passed the Consumer Product Safety Improvement Act of 2008 (CPSIA) after a spat of large scale product recalls, including millions of toys containing lead or other toxins. In addition to stepping down the allowable amount of lead in children's products, the CPSIA forbids the manufacture or sale of children's toys or articles for childcare containing more than 0.1% of certain types of phthalates.

As USA Today reported as far back as 2005, at least one study has linked prenatal exposure to phthalates with developmental problems including smaller genitals and incomplete testicular descent. Phthalates have already been banned in toys in Europe. According to PBS's Now, toys with phthalates have also been banned in nine other countries including Mexico and Japan.

The problem? Two really. First, many retailers claim that the ban on already produced toys containing phthalates is news to them. As reported by the Wall Street Journal, the Consumer Product Safety Commission (CDSC) previously issued an opinion that the ban applied only to products made after the ban took effect. Last week, however, a federal judge in New York disagreed, ruling that the ban on sale of children’s items with phthalates applied to all inventory, starting February 10, 2009. According to the WSJ's Law Blog, this has many large retailers in a panic.

Secondly, many retailers don't know which products contain prohibited levels of problem phthalates. The new law mandated that they conduct testing and certify compliance, but in January the CDSC extended the testing requirements by one year.

This leaves many retailers and consumers not knowing which products on the shelf contain dangerous levels of phthalates. Suppliers and retailers may not legally have to test for phthalates for a year, but starting today, each sale of a toy containing too much will violate federal law. Each violation calls for a fine of up to $100,000, with repeated violations bringing up to $15 million in fines.

Roger Barnett, an Arizona rancher who claims he has turned over 12,000 illegal immigrants to the Border Patrol since 1998, has been sued by sixteen illegal immigrants he detained, allegedly at gunpoint, on his ranch.

The Washington Times described the circumstances giving rise to the suit:

"The lawsuit is based on a March 7, 2004, incident in a dry wash on the 22,000-acre ranch, when he approached a group of illegal immigrants while carrying a gun and accompanied by a large dog.

Attorneys for the immigrants - five women and 11 men who were trying to cross illegally into the United States - have accused Mr. Barnett of holding the group captive at gunpoint, threatening to turn his dog loose on them and saying he would shoot anyone who tried to escape."

The Mexican American Legal Defense and Educational Fund (MALDEF) is representing plaintiffs in the lawsuit, which asks for $32 million in actual and punitive damages for civil rights violations, infliction of emotional distress, as well as other crimes.

Some see Roger Barnett as "an American hero" who has fought to "protect his property for years" and has aided the apprehension of thousands of illegal aliens. On the other side of the debate, open border advocates and civil rights groups feel that individuals such as Barnett are vigilantes who often end up violating individuals' civil rights.

Notably, this is not the first time Barnett has faced legal consequences for his immigration enforcement actions. The Southern Poverty Law Center noted that, in 2006, "border vigilante Roger Barnett [was ordered] to pay $98,750 to a family of Mexican-Americans he terrorized in 2004". In that case, a jury ruled against Barnett for threatening two Mexican-American hunters and three young children with an assault rifle and insulting them with racial epithets. Unlike the present case, all members of the family in that case were Mexican-Americans born in the United States. The court in the current case, however, indicated that illegal immigrants do not leave all legal protections at the border in rejecting defense attorney David Hardy's arguments that illegal immigrants do not have the same rights as U.S. citizens.

This is noteworthy because Arizona law allows the use of physical and even deadly force to prevent the commission of certain serious crimes, and also allows for a person to use physical force against another when and to the extent that a "reasonable person" would believe it necessary to prevent criminal trespass on their premises, or to prevent theft or criminal damage to certain property. Barnett has complained for years about illegal immigrants vandalizing his property, saying they "tore up water pumps, killed calves, destroyed fences and gates, stole trucks and broke into his home."

Nevertheless, a violation of individuals' federal constitutional rights would trump any justifications afforded by state law, and might explain why this matter is going to trial. Regardless of whether Barnett is seen as a "hero" or "vigilante", and regardless of how this lawsuit progresses, the more urgent reality is that there are very risks of life for all parties involved in these situations, as Arizona has becomes a more of a central hub in illegal immigration and drug trade.

A panel of federal court judges has issued a tentative ruling that could result in the release of as many as 57,000 inmates throughout California's prison system -- about one-third of prisoners in the state -- a decision aimed at reducing dangerous overcrowding and relieving unconstitutional confinement conditions.

In considering inmates' challenges to the constitutionality of overcrowded conditions in California's prisons, the three federal court judges heard from a number of expert witnesses, and considering the statistics -- such as the fact that the state’s prisons were operating at near 200 percent of design capacity as of August 2008. The evidence of constitutionally inadequate health care and mental health services led the panel to decide "given the evidence presented to this Court, that an order imposing a cap on the prison population and requiring the State to adopt a course of action to reduce overcrowding is warranted" under the Prison Litigation Reform Act. The panel declared that it was issuing a tentative ruling "in order to give the parties notice" of a probable prisoner release order,and to "allow them to plan accordingly."

According to the Los Angeles Times: "If the state is ordered to reduce the prison population, it would likely be able to do so over two or three years, so it would not have to release large numbers of inmates at once. Some methods of cutting the population include limiting new admissions, changing policies so parole violators return to prison less frequently, and giving prisoners more time off of their sentences for good behavior and rehabilitation efforts."

Over the weekend, New York Yankees third baseman Alex Rodriguez was identified as having tested positive for steroid use in 2003. Today, he admitted to using performance enhancing drugs from 2001 to 2003. While the highest paid player in baseball history may suffer permanent damage to his legacy, the leak of his positive test in 2003 may have been a crime.

As the New York Times reported, in 2003, to determine whether it needed to institute a mandatory testing system, Major League Baseball (MLB) randomly tested its players for steroids. At that point, there was no MLB penalty for using steroids. According to Sports Illustrated, 104 players tested positive and one was Alex Rodriguez.

If baseball tested him positive in 2003, one might wonder why we are just hearing about it now? The answer is that results of the 2003 tests were never to have been revealed, and maybe never would have been if not for the long-running Barry Bonds and Bay Area Laboratory Cooperative (BALCO) saga.

The Times reports that as part of the Bonds and BALCO probes, in 2004, investigators raided Comprehensive Drug Testing (CDT), the company the MLB used to perform its 2003 testing. Investigators first seized samples and testing information from CDT for the 10 players at issue in the Bonds and BALCO probes. A month later, they reportedly returned and seized samples and information regarding all 104 players who tested positive in 2003, based on a master list of all the positive tests found in a search of the CDT labs.

According to Sports Illustrated, the results of MLB's 2003 testing program were meant to remain anonymous. According to the New York Times, negative results (such as the 2003 Bonds test later retested and now at issue in his perjury case) were to have been destroyed within 30 days.

Currently, information on the 104 who tested positive in 2003 is filed under seal in the Bonds case. Additionally, Yahoo Sports reports that U.S. District Court Judge Susan Illston and two other federal judges previously ordered that anyone leaking the sealed information would be in contempt of court.

Sports illustrated cites two unnamed sources familiar with the government's case, and two unnamed sources familiar with the 2003 testing, as confirming that ARod tested positive in 2003. This means that if investigators or prosecutors leaked the info, they very well could have committed a crime. Contempt proceedings in the BALCO fiasco would be nothing new. The LA Times reported in 2007 that one defense attorney in the BALCO case pled guilty to two counts of contempt of court for leaking sealed testimony to reporters.

For his part, Rodriguez has admitted in an interview with ESPN to using steroids for a three year period with the Texas Rangers, but states that his years in New York have been clean. For ARod, the cat’s out of the bag. It also may be out of the bag for anyone involved with the Bonds or BALCO cases who may have committed a crime by leaking the juice on ARod.

R&B singer Chris Brown and pop star Rihanna were no-shows at Sunday's Grammy Awards, despite the show's listing them both as performers in its intro. It turns out that Chris Brown might have been busy getting charged with "a felony in connection with a domestic violence incident."

Although earlier news reports indicated that police had not yet identified the alleged victim, an L.A. Times story indicates that "[t]he victim, who was later identified by sources familiar with the case as Rihanna, suffered visible injuries and identified Brown as her attacker, according to the police report." The incident reportedly arose after the pair attended a pre-Grammy's dinner on Saturday, drove off in a rented Lamborghini, and ended up getting into an argument a few miles from there. CNN, which did not identify the victim as Rihanna, reported that:

"'After stopping his car, Brown and the woman got out and the argument escalated,' police said.

After receiving a 911 call at about 12:30 a.m. Sunday, officers found the woman at the scene of the alleged fight, but Brown had left, the department said."

However, after rounding up attorney Mark Geragos (of Michael Jackson, Scott Peterson, and similar high-profile defendants' fame) and an investigator, Brown turned himself in at an L.A. police station later on Sunday evening where he was booked and posted $50,000 bail.

Although the nature of this incident and its causes are unclear, the L.A. Times noted that in an earlier interview Chris Brown described a history of domestic violence at home:

"In a 2007 interview with Giant magazine, Brown said his mother had been physically abused by his stepfather. "He used to hit my mom," he was quoted as saying in the Giant article.

"He made me terrified all the time, terrified like I had to pee on myself. I remember one night he made her nose bleed. I was crying and thinking, 'I'm just gonna go crazy on him one day . . . ' I hate him to this day."

The effects of domestic violence on children can be varied, and any speculation as to the Chris Brown case would be premature, but studies have noted that an individual's future dating relationships may reflect violence learned or witnessed in the home. Below are some links with more information and resources for domestic violence.

Limits on Lead in Toys, Kids' Products Take Effect

New federal restrictions on the presence of lead and other harmful chemicals in children's products take effect on Tuesday (February 10). The new product safety rules are part of the Consumer Product Safety Improvement Act (CPSIA), passed by Congress in response to a number of high-profile recalls of toys in 2007 and 2008.

According to a U.S. Consumer Product Safety Commission (CPSC) News Release: "Starting on February 10, 2009, consumer products intended for children 12 and under cannot have more than 600 parts per million of lead in any accessible part," although a one year stay will offer limited compliance relief to certain toy manufacturers and importers. The new federal regulations also limit levels of phthalates, which are used to soften plastic in toys and other children's products. Last week, a federal judge in New York ruled that CPSC may not let toys containing harmful levels of phthalates remain on store shelves after Tuesday, the New York Times reports.

In December 2008, Mattel Inc. announced that it had reached a $12M settlement over one of the largest consumer scares involving lead in children's products -- the 2007 recall of more than 2 million Mattel and Fisher-Price toys due to excessive levels of lead in the surface coating and sub-surface layers of the toys.

The decisions and actions of Nadya Suleman, the California mother who gave birth to octuplets last week, have raised a firestorm of controversy over the past days. However, the AP reports that the California Medical Board is now investigating Suleman's fertility doctor.

In a statement, the Medical Board said, "We are looking into the matter to see if we can substantiate a violation of the standard of care."

At this point it's unclear what specific violations may be at issue, but the Whittier Daily News reports that "more than 300 pages of public documents were released that showed Suleman struggled with depression for years until she finally began to realize her childhood dream of having a huge family." Portrayals of Suleman as unstable and irresponsible have only magnified in recent days, as noted by the L.A. Times:

"Suleman has come under criticism because she already had six children before carrying the octuplets. She told NBC she used the same fertility specialist for all the implants and that the doctor knew about all the other births. She said she refused to selectively reduce the number of embryos and that the births of eight babies 'turned out perfectly.'"

The move by the Medical Board, however, may focus attention on Suleman's fertility doctor, where some feel it is truly warranted. In an online release and blog, Dr. Samuel Wood, a fertility specialist at the San Diego Reproductive Sciences Center, had previously called for exactly this move by the Medical Board. Dr. Wood suggested that Suleman and her children should be receiving the support of the public as normally happens in these high-profile cases, while scrutiny should be directed to the treating physician. In his own words:

"'Virtually every physician has been asked to prescribe medications or perform procedures that are clearly not in a patient's best interests or are outside acceptable medical practice. It is the physician's responsibility to provide a patient with only those treatment options that fall within the standard of care for the condition they are treating. Under such circumstances, even obtaining 'informed consent' from the patient does not absolve the physician of responsibility.'"

Nevertheless, as Dr. Wood himself noted, specific details regarding the procedure and any discussions between Suleman and her physician remain unclear at this point.

CNN also reported on the NBC interview with Suleman, who said she was told by her fertility specialist "about risks for the children. But she did not want to have only one or two embryos implanted. 'Of course not, I wanted them all transferred. Those are my children. And that's what was available and I used them. I took a risk. It's a gamble. It always is.'"

The links below offer more information on this case, as well as a link to a chart displaying the investigation and enforcement process for the Medical Board of California.

Be careful if you plan on going to a California DMV office on a Friday. Like many state offices, DMV locations across the state will be closed on the first and third Friday of every month for a while. The forced furloughs are an attempt to save money as the state grapples with monumental budgetary problems.

The LA Times reported today that over 200,000 employees of the state of California took their first "Furlough Friday." To save money at a time when the state's deficit forecast to reach up to $42 billion, Governor Schwarzenegger issued an executive order last December requiring state employees to take two unpaid days off per month. The executive order calls for the cuts to remain in force through June 30, 2010.

As the Sacramento Bee reported, some confusion has grown around whether employees of state-wide elected officials must take the furloughs. For now, it appears that these 15,600 employees of the lieutenant governor, state controller, secretary of state, treasurer, superintendent of public instruction, insurance commissioner, attorney general and independent Board of Equalization will be working on Furlough Fridays.

The AP reports this partial list of what will be open and what will be closed the first and third Friday of each month.

Prop 8 Cases Will Be Heard March 5, CA Top Court Announces

The California Supreme Court announced this week that on March 5th it will hear oral arguments in three cases challenging the constitutionality of Proposition 8. The state ballot measure effectively banned same-sex marriage in the state after it was approved by California voters in November 2008.

California’s highest court will hold a three-hour hearing on March 5, 2009 (9:00 a.m. to noon) at its courthouse in San Francisco. The court has also announced that, in light of the high level of public interest in the Prop 8 cases, it has designated the public affairs cable network The California Channel to provide a live television broadcast of the March 5 oral arguments. That station will serve as a “pool” channel, which means its broadcast will likely be made available to other television stations.

According to a California Courts News Release, the California Supreme Court will be considering three key questions related to Proposition 8’s legality: 1) Did Proposition 8 amount to a revision of the state’s Constitution (making it invalid)?; (2) Does Proposition 8 violate the state constitution’s separation of powers requirements?; and (3) If Proposition 8 is legal, what is the legal effect on same-sex marriages performed prior to the measure’s adoption? It is customary for the court to issue a ruling within 90 days of after oral arguments, so a decision on Prop 8 should come down before mid-June.

The Prop 8 case has drawn an unprecedented level of interest and campaigning on both sides of the same-sex marriage debate. According to the San Francisco Chronicle, “final reports filed with the state this week showed that the opposing sides spent $85 million on the campaign - $40 million for supporters of Prop. 8, $45 million for opponents - the highest total in U.S. history for a ballot measure on a social issue.”

Anthony Stancl Charged in Facebook Sex Blackmail Scheme

The AP reports that 18-year-old Wisconsin resident Anthony Stancl has been accused of "posing as a girl on Facebook, tricking at least 31 male classmates into sending him naked photos of themselves and then blackmailing some for sex acts."

Stancl was charged on Wednesday with "five counts of child enticement, two counts of second-degree sexual assault of a child, two counts of third-degree sexual assault, possession of child pornography, repeated sexual assault of the same child, and making a bomb threat." With regard to the bomb threat charge, the Milwaukee Wisconsin Journal Sentinel reported that Stancl "left public trails on blogs and social networking sites to document a bomb threat at his school in mid-November."

Stancl's defense attorney, Craig Kuhary, said that his client intends to plead not guilty to the charges and would like to make a plea deal with the district attorney. Kuhary said, "It's too early in the case for me to make a statement, other than the fact at some point we are going to go into events that had taken place earlier that might have had some impact on what he did here."

The charges levied against Stancl reportedly leave him facing up to 300 years in prison, according to a FOX report. Still, this is the latest in a string of concerning reports on teens committing criminal offenses involving exchanges of nude photos on the internet or via cell phone. As noted in a blog last month regarding the practice of "sexting," teens taking nude or risque pictures of themselves and transmitting them to others may expose themselves to serious criminal, as well as social consequences. These latest charges in the Stancl case, as well as the likely trauma suffered by the teen victims, further emphasize such dangers, and appear to point to an increasing need for parents to take an active role in addressing the issue. Below are links to more information, as well as a survey that includes tips to help parents talk to their teens.

Scabby the Rat Wins First Amendment Battle

Today the New Jersey Supreme Court sided with Scabby the Rat in a battle over First Amendment rights in Lawrence Township, New Jersey. The court ruled that a local ordinance enforced against a labor protester displaying the ten foot tall rat balloon was an unconstitutional restriction of speech. The case raised the age old question of when and how local governments can restrict speech in a public forum.

As cnn reports, in April of 2005, members of the International Brotherhood of Electrical Workers marched outside a Gold's Gym in Lawrence Township, over a labor dispute with a contractor working on the site. Scabby was inflated on a sidewalk as part of the protest. Police first made the protesters deflate Scabby, then issued a summons to IBEW member Wayne DeAngelo after Scabby was reinflated.

Scabby the Rat, produced by Big Sky Balloons and Searchlights, is used in labor protests nationwide. "He's quiet. He doesn't say much," the Union News reports DeAngelo as saying about Scabby. "But he really gets our message out. Visibility is important. Without the rat, we're wasting our time."

The case illustrates a common question in municipalities across the country: to what extent can laws be written that restrict how people express themselves in public fora such as sidewalks, streets and parks? The court's opinion shows that a public forum speech restriction connected to the speech's content will much more likely violate the first amendment.

The ordinance at issue banned "balloon signs or other inflated signs (except grand opening signs) ... displayed for the purpose of attracting the attention of pedestrians and
motorists... ." According to the court, allowing grand opening balloon signs but forbidding other balloon signs made the ordinance content specific. If the rule is content based, the government must prove the rule is narrowly tailored to satisfy a compelling interest.

Here, the town's interests in its aesthetic appeal and traffic safety were not enough. As often happens at this level of scrutiny, where "core" political speech is restricted based on content, the law was held to violate the first amendment. If the ordinance is revised to make it content neutral and to properly limit the time, place and manner of use of balloon signs, it could come into compliance with the First Amendment.

But for today, it's good news for Scabby. Since his deflation in Lawrence Township, he has been restricted to strictly out of town gigs. "He can't get blown up in his own home town," DeAngelo reportedly said. "It's sad."

Not anymore. Scabby the Rat can, at least for now, legally return to the sidewalks of Lawrence Township.

February is African-American History Month

Each February, America celebrates African-American History Month. This year's theme is "The Quest for Black Citizenship in the Americas," recognizing the importance of the National Association for the Advancement of Colored People (NAACP) and its role in furthering equality and social justice.

In light of this year's theme, the Library of Congress reminds Americans that "a century ago, an interracial group of Americans joined together and formed the National Association for the Advancement of Colored People (NAACP)," and that "the centennial of the NAACP is an occasion to highlight the problem of race and citizenship in American history, from the experiences of free Blacks in a land of slavery to the political aspirations of African Americans today."

In a Proclamation issued Monday, President Barack Obama delcared that "This year's theme, 'The Quest for Black Citizenship in the Americas,' is a chance to examine the evolution of our country and how African Americans helped draw us ever closer to becoming a more perfect union."

Click on the links below for more information on African-American History Month, special events commemorating African-American history, and civil rights:

Some parents are understandably concerned with their kids' use of the Internet, but the AP reports that Google is reaching out to parents and others with a new feature called "Latitude" that enables "people with mobile phones and other wireless devices to automatically share their whereabouts with family and friends."

CNN wrote about how Latitude functions, as well as what types of devices can use it:

"Latitude is part of Google Maps for Mobile, the company's mapping software for mobile phones, but also can be used through a gadget loaded onto its iGoogle customized home page. It'll work in 27 countries at launch, Google said.

Initially, it will work on most color-screen BlackBerry phones, most phones with Windows Mobile 5.0 or later, and most Symbian-based devices such as Nokia smartphones. An update to the Google Android operating system now being distributed to the T-Mobile G1 phone also enables it, and iPhone and iPod Touch users will get the option "very soon," Lee said.

Latitude uses Google's technology to judge a user's location not just by GPS satellite, but also by proximity to mobile phone towers and wireless networks."

The privacy implications the come along with a tool such as Latitude are clear. What if you don't want people knowing where you are, for how long, and so on? Google plays down any Orwellian "Big Brother" privacy fears, promising "not to retain any information about its users' movements" and that "[o]nly the last location picked up by the tracking service will be stored on Google's computers", according to a Google product manager. Furthermore, in order for someone to be tracked with the service, they have to sign up for an account and specify exactly who they want to allow to track them.

As far as using the device to keep tabs on tech savvy kids or teens, it looks like there might be a few limitations, as apparently "with the service, you can hide from specific people or disappear altogether. And you can manually set a specific location if, for example, your phone can't show it with sufficient precision or if you wish to tell someone a white lie about whether you really aren't going to go to the candy store."

Financial analyst and fraud tipster Harry Markopolos testified before the House Financial Services Committee today about the Bernie Madoff Ponzi scandal. For almost nine years, Markopolos conducted his own investigation and pleaded with the SEC to investigate what would become the largest Ponzi scheme yet recorded. His testimony questions fundamental competency within the SEC and suggests that SEC attorneys failed for the same reason many Madoff investors got duped: ignorance about the investments plus embarrassment at not understanding.

Markopolos' prepared testimony reads like a voluminous field report from a financial analyst turned vigilante investigator. Ignored by SEC regulators, Markopolos, a derivatives trading expert, is forced out of civic duty to conduct an investigation with his own team. Says Markopolos, “[m]y army special operations background trained me to build intelligence networks, collect reports from field operatives, devise lists of additional questions to fill in the blanks, analyze the data, and send draft reports for review and error correction before submission to the SEC.” Theatrics (and that he reportedly was a competitor of Madoff) aside, Markopolos appears to have been largely right.

For years, Markopolos believed that based on the types of investments Madoff was supposedly offering, the returns reported simply could not be real. As the Guardian reports, five minutes with Madoff's offering materials were enough for Markopolos to suspect fraud. And in four hours he broke down the mathematical models to show that Madoff's returns could not come from the investments he purportedly sold.

He tried to explain this to the SEC though detailed reports, phone calls, meetings and emails in 2000, 2001, 2005, 2006, 2007 and in 2008. The upshot? As Markopolos estimates in his testimony, "SEC securities lawyers if only through their investigative ineptitude and financial illiteracy colluded to maintain large frauds such as the one to which Madoff later confessed." He is particularly hard on former SEC New York Branch Chief Meaghan Cheung, whose office failed to investigate Madoff. Markopolos claims she never understood the concepts in his reports, and was too arrogant to ask any questions.

Which brings us back to the first shady Madoff investment to catch Markopolos' eye: a "split-strike conversion" strategy Madoff was offering in or around 1999. Way back then, Markopolos saw a reason that Madoff chose "split-strike conversion" to cover what was truly a Ponzi investment scheme. "He knew most wouldn't understand it and would be embarrassed to admit their ignorance so he would have [fewer] questions to answer." A nice hook for a Ponzi schemer: ignorance plus embarrassment.

Markopolos, the House Finance Committee and the public rightfully demand an SEC that understands the mechanics of the field which it regulates. However, investors can also see a lesson in the Madoff case about the importance of understanding any investment, and of asking questions about what you don't understand. More questions of Madoff earlier could have meant fewer billions stolen.

Most people have heard of the term "tightening their belts" during tough times. It looks like states, however, may be tightening up their seat belt laws during the recession, and people who haven't been taking those laws seriously soon might end up helping their state deal with its budget woes. The AP reports that more and more states are looking at giving police the power to pull over drivers simply for not wearing their seat belts.

Many of us are aware of seatbelt laws, but states actually vary in how they enforce such laws. In some states, such as Ohio, police officers must have a separate reason to pull over a driver, such as speeding or some other traffic or mechanical violation, before they can slap down a citation for not wearing a seatbelt. These laws allow for what is known as "secondary" enforcement, as opposed to "primary" enforcement where an officer can make a stop simply for not buckling up. Ohio's not alone by a long-shot either in using secondary enforcement, as only about half of states have primary enforcement.

Research from the National Highway Traffic Safety Administration (NHTSA) shows that states switching to primary enforcement are likely going to save lives, and the states will also receive the monetary bonus of having the door opened to federal funds that are otherwise unavailable.

Ohio says it would get $26.8 million if it changes its law, and as the vast majority of states struggle with growing deficits with no quick end in sight, this is likely to be just one of many cost-saving measures taken by states to try and diminish their estimated $350 billion in collective projected budget shortfalls over the next few years.

The AP reported that according to the NHTSA, states must pass their new laws by summer and begin enforcing them by September in order to get the federal money, so these changes could be occurring in short order. The links below provide some more information and can help people find out what kind of seat belts laws they have in their state.

MySpace Bans 90,000 Sex Offenders from Site

MySpace, the wildly popular social networking site used by millions of people, announced Tuesday that it has identified approximately 90,000 registered sex offenders who are also registered users of the site, and has been deleting the MySpace accounts and access priveleges of those individuals over the past two years.

According to Connecticut Attorney General Richard Blumenthal, who co-chairs the state attorney general task force on social networking, the current number of sex offenders identified as MySpace users (90,000) is 40,000 more than MySpace acknowledged in an earlier report. On Tuesday, Blumenthal stated in a Press Release: "Almost 100,000 convicted sex offenders mixing with children on MySpace. . .is absolutely appalling and totally unacceptable. For every one of them, there may be hundreds of others using false names and ages. These convicted registered sex offenders creating profiles under their own names unmasks MySpace's monstrously inadequate counter-measures. MySpace must purge these dangerous offenders now -- and rid them for good. Social networking sites must be barred as playgrounds for predators -- a very real threat exposed by the response to our subpoena."

A study published in January found that most teenagers who maintain an online profile on MySpace make reference to "risk" behaviors like sex, drug and alcohol abuse, and violence on their pages. In early 2008, MySpace announced 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.

In a lawsuit that could raise some taxpayers' eyebrows, CNN Money is reporting that Citigroup recently sued a Brooklyn, N.Y., pawn shop called "All Citi Pawn" over the use of the Citi abbreviation and a logo that Citigroup claims infringes on their intellectual property rights. Citigroup is seeking the entirety of All Citi Pawn shop's profits since it adopted the All Citi name.

All Citi's manager Bob Kay explained the differences between the logos to CNN, "Theirs is a moon shape, mine is a V-shape".

This news might not sit very well with New Yorkers, considering a Reuters report in November on how outraged New Yorkers were by the federal government's bailout of the company:

In a random sample of people inside the Port Authority, the world's busiest bus terminal, only one man backed the government decision to prop up the New York-based bank, even though it is a huge employer in the region.

At that time, the federal government had announced a $20 billion handout for the company as well as a "plan to shoulder most of its potential losses on $306 billion of toxic assets, after the bank's shares sank more than 60 percent in the previous week due to concern about its ability to survive."

Citigroup would say only that "as a matter of course, we work to protect the value of our trademarks." It should be noted that it is unclear at this point what steps, if any, Citigroup took to resolve the matter prior to suing. Usually companies and attorneys in these types of situations try to work it out with the alleged trademark or copyright offenders prior to initiating a lawsuit. In the meantime, Bob Kay indicated that they have removed the offending signage with the logo, but also says that has not resolved the case.

FDA Panel: Pull Darvon from Market

An FDA advisory panel on Friday voted in favor of removing the popular prescription painkiller Darvocet from the market, based in part on questions about the overall effectiveness of the drug and its links to overdose, addiction, and suicide.

The U.S. Food and Drug Administration (FDA) advisory panel of medical experts voted 14 to 12 in favor of removing Darvon/Darvocet from the market. The consumer advocacy group Public Citizen had recently petitioned the FDA to pull Darvon/Darvocet from the market because of perceived doubts about the effectiveness of the drug, especially in light of overdose and addiction risk tied to the painkiller, heart problems associated with the drug, and its frequent use in suicide attempts. CNNMoney.com reports that "the FDA will make the final decision, and given the essentially split vote it's not clear the FDA will take the products off the market."

Darvon/Darvocet (propoxyphene) has been prescribed to relieve moderate pain since 1957. Taken in high doses (by itself or in combination with other drugs), Darvon/Darvocet has been associated with drug-related deaths, and the painkiller should not be taken with other drugs that cause drowsiness -- including alcohol, tranquilizers, sleep aids, antidepressants, or antihistamines.

Detroit's former mayor, Kwame Kilpatrick, was released from jail this morning after his 99-day stint, the AP reported. The mayor did time for obstruction of justice and assault offenses arising out of a text-messaging sex scandal involving Kilpatrick and Christine Beatty, who was his Chief of Staff at the time. Text messages, at times sexually explicit, between Christine Beatty and Kilpatrick essentially "contradicted testimony that they gave during a 2007 whistle-blowers' trial when they denied having a romantic relationship," and also showed they "lied about their roles in the firing of a police official." Christine Beatty, who had pled guilty to obstruction of justice, was sentenced to the same extent as her boss, 120 days with time reduced for good behavior.

Defense attorney, Willie E. Gary, gave some insight to the AP into Kwame Kilpatrick's state of mind following his release:

"'He's not bitter. He said he learned a lot,' Gary said during an impromptu sidewalk news conference. "He said this has been an experience he'll never forget, and he thinks because of it he'll be a better person."

Also, it looks like Kilpatrick retains some fans in Detroit, as the AP noted:

"On the sidewalk, Kilpatrick stood for a long moment amid bright television camera lights, a crush of awaiting reporters and swirling snowflakes, smiling occasionally to those in the crowd who called his name and shouted: 'We love you, Kwame! Detroit loves you, baby!'"

Despite the tough economic conditions facing much of the area, Gary also felt good about Kilpatrick's future employment:

"The job prospect is very, very, very favorable," Gary told reporters. "We want to make sure he can get, and land, the job. That's his first thing. He wants a job. That's what he is concerned about now. He wants to get with his family, get with his kids so he can start his life again."

A $1 million dollar restitution order imposed on Kilpatrick, plus the revocation of his license to practice law, probably sheds a bit of light on the urgency of his job hunt in a city that now faces "a deficit believed to be more than $200 million." In general, when an attorney is convicted of a serious felony offense they usually lose their license to practice, which can be temporary in the form of a suspension, or long term via disbarment. State licensing boards often take a harsher view of offenses involving deceptive behavior, such as perjury or obstruction of justice.

However, in Kilpatrick's case, he actually agreed to the revocation of his law license as part of his plea deal in the criminal case. This took the matter out of the hands of the state disciplinary board, which in late January told Kwame Kilpatrick to try a criminal appeal if he wanted to challenge the revocation of his license.

Consumers' Checkbook Loses Appeal in Medicare Data Case

In a blow to a consumer group and its efforts to make physicians Medicare claims information more transparent, a federal court of appeals has ruled that a consumer group is not entitled to access to a set of records on Medicare claims from the government that it had requested. The AP reported that the case was seen as "an important battle in the effort to remake the nation's health care system to provide higher quality service and waste less" and was "being closely watched by employers, insurers and consumer advocates".

The lawsuit was brought by Consumers' Checkbook, Center for the Study of Services (CSS), which is a nonprofit consumer organization that analyzes the quality and prices of local service firms and stores, such as auto repair shops, plumbers, dentists, banks, and insurance companies. It sued under a federal law known as the Freedom of Information Act and asked for records for all Medicare claims submitted to the United States Department of Health and Human Services by physicians in several areas during 2004. Consumers' Checkbook wanted this information so that they could analyze physicians' performance and rate individual doctors, as it does with other providers of services.

Although Consumers' Checkbook succeeded in lower court getting an order to release the records, late Friday an appellate court concluded that the records at issue could not be obtained because "physicians have a substantial privacy interest in the total payments they receive from Medicare for covered services." The court rejected Consumers' Checkbook's claims that the public's interest in the documents justified their release. It simply didn't buy into the group's claims that the release of documents would help in assessing the efficiency and quality of services provided under Medicare or that it would help detect possible fraud and waste in the industry.

In the end, the court said that the information Consumers' Checkbook wanted simply did not serve any qualifying "public interest" in disclosure, much less one that could outweigh physicians' own "substantial privacy interest".

A new online vehicle database unveiled by the federal government gives used car buyers unprecedented access to critical vehicle history, and will allow law enforcement agencies to better monitor and prevent the selling of dangerous and stolen vehicles and other types of auto fraud.

Launched Friday by the U.S. Department of Justice, the new National Motor Vehicle Title Information System allows potential car buyers to get real-time access to a used vehicle's records -- including odometer data, title history, salvage and "total loss" designations, and theft reports. The New York Times "Wheels" Blog reports that data on about 73 percent of vehicles registered nationwide is now available on NMVTIS, with all states required to participate by around this time next year, but "the biggest improvement is that for the first time salvage yards, junkyards and insurance companies will be required to report on vehicles that had been totaled," beginning March 30, 2009.

The National Motor Vehicle Title Information System, an online system of the U.S. Department of Justice, was established under federal law in 1992 and is operated by the American Association of Motor Vehicle Administrators. According to an FBI Press Release, users of the NMVTIS will include state titling agencies, law enforcement officials, consumers, auto recyclers, salvage and junk yards, and insurance carriers. The system will allow consumers and law enforcement to easily identify vehicles that have incurred sufficient damage and been classified as "junk" or "salvage"; view updated odometer readings; and verify information on a vehicle's ownership documentation.