Common Law - The FindLaw Consumer Protection Law Blog

March 2009 Archives

FDA to Consumers: Don't Eat Pistachios

Two separate and large-scale recalls involving pistachio nuts have been announced in the last few days, due to possible salmonella contamination. And because the extent of the problem is net yet know -- including the specific products affected -- the U.S. Food and Drug Administration (FDA) is telling consumers to avoid eating pistachio nuts and any products containing them.

On Tuesday, Setton Pistachio of Terra Bella (California) issued a nationwide recall of about 1 million pounds of pistachio nuts, after salmonella was found in roasted pistachios that were used in certain brands of trail mix. Get more information on the Setton Pistachio recall from the California Department of Public Health.

Last Friday, The Kroger Co. announced that it was recalling "Private Selection Shelled Pistachios" sold in its various retail stores because of possible salmonella contamination. According to the FDA, "stores under the following names in the 31 states where Kroger operates are included in this recall: Kroger, Ralphs, Fred Meyer, Fry's, King Soopers, Smith's, Dillons, QFC, City Market, Foods Co., Jay C, Scott's, Owen's, Baker's, Gerbes, Hilander and Pay Less." Get detailed information on the Kroger Co. pistachio recall -- including affected products, stores, and states -- from the FDA.

People infected by salmonella bacteria can develop symptoms like diarrhea, fever, and abdominal cramps 12 to 72 hours after infection. The illness usually lasts 4 to 7 days, and most persons recover without treatment. But occasionally, symptoms may be so severe that hospitalization is necessary. The elderly, infants, and those with impaired immune systems are more likely to have severe illness. Learn more about salmonella and food poisoning.

Cigarette Tax Increase Has Smokers Coughing It Up

If you're a smoker, now may be a good time to try to kick the habit, because a bump in the federal tax on cigarettes goes into effect this week, raising the federal tax per pack from 39 cents to $1.01.

The increase in the federal tobacco tax is a part of the Children's Health Insurance Program Reauthorization Act of 2009, which was signed into law in February. The Act calls for an increase in the federal excise taxes on all tobacco products, including cigarettes, cigars, rolling papers, and chewing tobacco. The federal tax on a pack of cigarettes will be over $1.00 as of April 1st, and anyone buying a carton of cigarettes will end up paying over $10 in federal taxes.

According to the Wall Street Journal, both tobacco companies and anti-smoking groups are trying to angle the tax hike to their advantage: "Major cigarette makers raised prices in recent weeks, partly to offset any drop in profits once the per-pack tax climbs from 39 cents to $1.01. Medical groups, meanwhile, see a tax increase in the middle of a recession as a great incentive for smokers to quit."

IRS Offers Top 10 Tips on IRA Contributions

As the April 15th income tax filing deadline approaches, the Internal Revenue Service is offering some last-minute tips for taxpayers, including helpful advice on how contributions to your Individual Retirement Arrangement (IRA) can affect your tax situation. Take a look at a few highlights from the top 10 below:

Tip #1. You may be able to deduct some or all of your contributions to your IRA and you also may be eligible for a tax credit equal to a percentage of your contribution.

Tip #2. Contributions can be made to your traditional IRA at any time during the year or by the due date for filing your return for that year, not including extensions. For most people, this means contributions for 2008 must be made by April 15, 2009.

Tip #5. For 2008, the most that can be contributed to your traditional IRA generally is the smaller of the following amounts: $5,000 or the amount of your taxable compensation for the year. Taxpayers who are 50 or older can contribute up to $6,000.

Tip #8. To contribute to a traditional IRA, you must be under age 70 1/2 at the end of the tax year.

Learn more: Top Ten Tips for IRA Contributions, from the IRS

Consumers who have signed up for the National Do Not Call Registry (and anyone who has had a peaceful dinner interrupted by a ringing phone and a once-in-a-lifetime offer) can take solace in the announcement of two small victories in the seemingly unending war against annoying and unlawful telemarketers.

A federal lawsuit filed Wednesday accuses Dish Network (formerly EchoStar) of calling numerous consumers who have placed their phone numbers on the National Do Not Call Registry, and of using "robocalls" -- which deliver prerecorded telemarketing messages when consumers answer their phones -- in violation of the the Telemarketing Sales Rule, according to a Press Release from the Federal Trade Commission (FTC). The complaint was filed by the FTC and the attorneys general of California, Illinois, Ohio, and North Carolina.

In another small victory against excessive and unsolicited telemarketing, Verizon Wireless announced this week that it has settled a lawsuit with a Utah organization that had flooded Verizon customers with calls promoting a movie -- to the tune of 500,000 calls over a 10-day period -- according to the Los Angeles Times.

The National Do Not Call Registry allows you to choose whether to receive telemarketing calls, either at home or on your cell phone. Most telemarketers have to stop calling your number once it's been on the do-not-call list for 31 days. Learn more: National Do Not Call Registry.

Can I Get Fired for Posting on Twitter or Facebook?

Twitter and Facebook have seen no shortage of media coverage over recent weeks, with everyone ranging from elected representatives to sports stars spending time on one application or another, to impostors spending time on the sites instead of their more famous counterparts.

However, some news stories should raise caution flags for employees about how they use Twitter, Facebook, or whichever social networking site they prefer, and may have employees wondering whether they can lose their jobs over some loose tweets or status updates.

The current Miss Montana, Jennifer Hepner, has pled not guilty in a DUI case stemming from a traffic stop in January of 2009, according to the AP. Since that time she has been suspended from her pageant duties, but gets to keep her tiara until the next Miss Montana comes around.

The AP gave the following background regarding Hepner's traffic stop and resulting charges:

"The 23-year-old University of Montana graduate student had been pulled over Jan. 3 and refused to submit to alcohol screening, breath or blood tests. Her license was seized and suspended.

The Bozeman Daily Chronicle reported Wednesday that Hepner has pleaded not guilty. She is also fighting the license suspension.

Her lawyer says her requests to speak with an attorney during the traffic stop were denied."

Noteably, however, Montana has implied consent DUI laws. As a result, anyone who drives in the state gives permission to police to conduct a preliminary alcohol screening test of their breath for alcohol concentration, so long as an officer has "a particularized suspicion" that they were driving while under the influence. Even though the driver actually does have a right to refuse this preliminary test, the consequence is a driver's license suspension. Also, a similar implied consent rule applies in Montana for blood and breath tests after a person has been arrested. The arrestee can still refuse to be tested, but this will result in automatic license suspension penalties.

Finally, although the circumstances of Miss Montana's case are unclear, it should be noted that someone's constitutional right to counsel doesn't stretch to the point that someone can demand an attorney and refuse to answer any and all questions during a simple traffic stop. Police are permitted to ask basic questions during a stop regarding a driver's identity and requisite documentation. Indeed, a refusal to answer those questions can be grounds for an arrest, in the first place. On the other hand, individuals are allowed to refuse to answer other questions without an attorney present.

Fisher-Price on Tuesday announced that it is recalling a popular combination high chair/toddler booster seat, because a defect involving the booster seat's release mechanism can pose a fall hazard for infants and toddlers.

The recall includes about 24,000 Fisher-Price "3-in-1 High Chair to Booster" chairs that were sold exclusively at Target stores nationwide, from December 2008 through March 2009, for around $100. The affected product number (P5369) can be found on the side of the high chair seat, on a seat pad label, and on the packaging. Check out a step-by-step online guide from Mattel's Consumer Relations Answer Center, to find out whether a specific high chair is affected by the recall.

The "3-in-1 High Chair to Booster" can convert from a high chair to a booster seat via a few adjustments. But here is the problem that prompted the recall: "The seat can fall backwards from high chair frame if the booster seat release is unlatched while the child is in the product. Also, the seat back can detach if not fully snapped in place, posing a fall hazard and risk of serious injury to young children," according to a News Release from the U.S. Consumer Product Safety Commission (CPSC).

Fisher-Price/Mattel has received one report of an infant skull fracture suffered in a fall that may be linked to the discovered hazard. The company is instructing parents and caregivers to stop using the recalled high chairs immediately and contact Fisher-Price for instructions and a free repair kit.

In the latest legal salvo fired at Kobe Bryant, the AP reports that the Los Angeles Lakers star's former housekeeper is suing both Kobe and his wife Vanessa. According to court papers, Maria Jimenez began working for the Bryants at their Orange County home in September of 2007 and left in March of 2008 claiming that:

"Vanessa Bryant 'badgered, harassed and humiliated' her in front of Bryant, the couple's children and others. She said the couple failed to provide health coverage, as promised when she was hired. She said she didn't learn she didn't have it until she became ill and sought medical attention."

The breaking point apparently came after Vanessa Bryant "screamed at Jimenez for putting an expensive blouse in the Bryants' clothes washer" and then "demanded that Maria put her hand in a bag of dog feces to retrieve the price tag for the blouse." It was at that point that Jimenez gave notice, but was allegedly still asked to work a day to recoup the $690 cost of the blouse.

The case raises the question of how someone can be wrongfully terminated if he or she, in fact, quit their job? The answer in most states, and certainly California, arises from a legal theory called "constructive termination", which comes into play when an employee quits due to "intolerable" working conditions. If someone is constructively terminated, the law is going to basically treat them as if they got fired even if they ended up walking off a job. Of course, not just anything will qualify as a "constructive termination."

Sticking with California, an employee must show two things to establish such a claim:

1) their working environment was so bad that a "reasonable employee" in the same position would have felt forced to quit; and

2) the employer acted deliberately or intentionally, or knew about the work conditions.

The wording probably seems a bit fuzzy, but as a general rule, a workplace won't be "intolerable" if there are just single or isolated unpleasant incidents (with the obvious exceptions of criminal acts or physical danger to an employee). Usually it takes a pattern of fairly serious conduct for a workplace to rise to the point of being intolerable.

Finally, even if an employee establishes the above requirements, that doesn't automatically mean that a termination was "wrongful". The majority of states, including California, are "at will" employment states where employees can quit and/or be fired at any time for almost any reason. Constructive termination claims rising to the point of being "wrongful" often involve an employee being harassed and/or discriminated against on an improper ground, or arise after they were asked to do something illegal. Alternatively, as is reportedly claimed in the Bryant case, an employment agreement might be breached or an employee might be required to do something in violation of health and safety regulations. Below are some links to more information on the case and employee rights in general.

An investigation by Yahoo! Sports has found that the University of Connecticut violated NCAA rules in its recruitment of troubled former guard Nate Miles. This unwelcome news for the school comes while the Huskies are in the midst of the NCAA Tournament, and scheduled to play Purdue in the Sweet 16.

The story gave specific details on the violations:

"Miles was provided with lodging, transportation, restaurant meals and representation by Josh Nochimson – a professional sports agent and former UConn student manager – between 2006 and 2008, according to multiple sources. As a representative of UConn’s athletic interests, Nochimson was prohibited by NCAA rules from having contact with Miles and from providing him with anything of value."

The report adds that one of UConn's assistants knew about the relationship between Miles and Nochimson, and that coaches at the university (including head coach Jim Calhoun) contacted Nochimson via text and phone thousands of times between 2006 and 2008. The report includes images of documents discovered in the investigation, including phone records which were obtained from the school via the Freedom of Information Act.

The documents raise the possibility that UConn's program also violated rules regarding the amount of calls that can be made to a prospective recruit still in high school. A particularly serious concern noted by the Yahoo! Sports report is the possibility that agents and schools are developing relationships to "steer" athletes in certain directions, in exchange for having the player handed back to the agent for their lucrative pro careers.

As a sidenote, Nochimson himself doesn't have a clean slate as far as his past relationships with players go, as the report noted he has been accused by NBA star Richard Hamilton of stealing more than $1 million from him.

A tiny bit of silver lining, if you can call it that, for UConn fans who are following the team's progress in the NCAA Tournament is that Nate Miles was actually expelled from the school in October of 2008. The discipline was handed down following allegations that he abused a female student, and after he was charged with violating the same student's restraining order. As a result, Miles never played a game for the school and an ESPN story noted "there is no chance for forfeiture of games, meaning that the Huskies' pursuit of the 2009 national title should not be affected".

The vast majority of accidents involving children and unintentional poisoning occur in the home and are caused by the ingestion of common consumer products, according to figures released last week by the U.S. Consumer Product Safety Commission (CPSC). So, how can you make your home safer and protect your children?

Each year, accidental poisonings prompt more than 2 million calls to poison control centers, result in about 80,000 children being treated in ERs, and cause about 30 child deaths, according to a CPSC Press Release timed to conincide with National Poison Prevention Week (March 15-21). More than 90 percent of these emergencies stem from incidents in the home, including ingestion of medications, cleaning products, even things like lamp oil.

CPSC urges parents and caregivers to take three key steps to protect children from accidental poisoning in the home: 1) keep medicines and chemicals in original, child-resistant containers, 2) store potentially dangerous substances up high and out of a child’s sight and reach, and 3) keep the national toll-free poison control center phone number handy at all times (1-800-222-1222) in case of emergency. Learn more about ensuring your kids' safety: 10 Things to Think About: Preventing Childhood Injuries.

A huge $25 million scam stretching from Chicago to Central Mexico involving the "cloning" of cars was broken up by the FBI, according to CNN. To anyone wondering what car cloning even is, it's not a crazy lab experiment. The scam involves taking the major identifying features of a legally owned car and putting them on a similar stolen car. This would include the vehicle identification numbers (VINs) and license plates, and possibly identifying stickers too.

CNN related one individual's story, that of Guiseppe "Joe" Pirrone, who got a loan at a credit union to buy a used pickup truck at a dealership only to have the vehicle taken away by police months later. To make matters worse, not only was Pirrone out the money he had paid for the truck up to that point, but the credit union also told him he was still obligated to pay the loan in full. Thus, Pirrone got left stranded with a loan obligation and absolutely nothing of value in return.

Although it's easy to get angry at the credit union for leaving an individual like Pirrone on the hook, car cloning actually leaves behind a wide trail of victims. The FBI told CNN that in this case "[m]ore than 1,000 vehicles were stolen in Florida, with more than $25 million in losses to consumers and banks" and that "[i]ndividuals have been victimized at every level, from the average Joe, to the banks, to big companies".

So what is there for a victim of the scam to do? CNN reports that Pirrone "has hired an attorney, and he is considering filing a lawsuit against the dealership to get the bank's money back. Pirrone said he was advised by his lawyer not to name the used car lot." Clearly, if a used car lot knows or had reason to know that a car they are selling was stolen, they can be held legally responsible by a car's purchaser. But as noted above, a used car lot can also be the victim of car cloning too, and they might not have had any idea that a car was stolen.

Fortunately, the same story reports that law enforcement is hoping that the ring's bust marks "the beginning of the end of the 'car cloning' scam. The National Motor Vehicle Information System (NMVTIS) database was implemented in January," which allows state DMVs to share title and registration information. However, a quick review of the website indicates that states' participation in the system is not universal, as of yet.

The take-away from all of this is probably that it is best to avoid being in a position of having purchased a cloned car in the first place. People looking to buy a used car, whether online or in person, should go about verifying the VIN and car's history via independent sources or with their state's motor vehicle agency before making a purchase. Also, it's probably best to entirely avoid buying a car independently from a stranger. And finally, the old adage applies that "if it sounds to good to be true, it probably is."

A tentative settlement of $1.25 million has been reached in the lawsuit brought against Westchester County, New York, by parents of a 7-year-old boy killed in an amusement park ride accident. The Playland amusement park was noteably featured in the Tom Hanks film "Big" and the ride at issue was an 80 year old ride with no prior history of fatalities.

The child's parents, Robert and Elayne Cassara of Norwalk, Connecticut brought the suit against the county, which operates the amusement park, and the AP summarized the circumstances of the accident:

"The boy was on Playland's Ye Old Mill ride, in which boats move gently in the dark through scenes populated by gnomes and trolls. He got out of his boat soon after the indoor ride started. He somehow ended up in its channel of water, dead from a blunt head injury."

Apparently, officials in the case conceded that the ride was not adequately staffed, which can open up the door to liability in a negligence lawsuit such as the one in the Cassara's case. Amusement and water parks are regulated to varying degrees at the state and local level (portable amusement rides have federal oversight), and common law negligence principles may apply where there are no specific laws. In the case of New York, the state does regulate and oversee amusement parks. For example, under the state's laws on amusement park rides:

"An operator shall be in the immediate vicinity of the operating controls during operation and no other person shall be suffered or permitted to handle such controls during normal operation. No operator shall be responsible for the operation of more than one amusement device at a time."

Another AP story also detailed testimony about how the park's own policy "called for at least three workers on Ye Old Mill, in which boats move gently in the dark through scenes populated by gnomes and trolls" and how "[t]here were only two workers when Jon-Kely Cassara" got on the ride. Regardless, even though regulations and policies will vary from state to state and park to park, adequate staffing and proper training of staff are common elements in the safe operation of an amusement park.

The latest variation of the destructive "Conficker" or "Downadup" computer worm is set to activate on April 1, setting cybersecurity experts and computer users scrambling to understand the threat and protect systems worldwide.

A Computerworld article offers some insight into the particular difficulty of combating this latest strain of the Conficker worm, which Computerworld calls "2009's biggest worm by a mile." According to Computerworld, "PCs infected with Conficker.c, the third version of the worm that first appeared late last year, will use a new communication scheme on April 1 to establish a link to the command-and-control servers operated by the hackers who seeded the malware." This hurry-up-and-wait dilemma makes it extremely difficult for security experts to understand the latest variant of Conficker, and to predict what it will do once unleashed. But on March 30, Computerworld announced that researchers had discovered a flaw in the new version of the Conficker worm, and the creation of a scanner which can quickly detect the presence of the worm on networks.

The New York Times 'Bits' Blog offers the following advice to computer users and businesses: "It is possible to detect and remove Conficker using commercial antivirus tools offered by many companies. However, the most recent version of the program has a significantly improved capacity to remove commercial antivirus software and to turn off Microsoft’s security update service. It can also block communications with Web services provided by security companies to update their products. It even systematically opens holes in firewalls in an effort to improve its communication with other infected computers."

In January 2009, the Conficker (or "Downadup") worm was estimated to have infected as many as one in every 16 personal computers, and compromised the security of 33 percent of computers and devices worldwide.

The AP reports that a federal court judge has dealt the Food and Drug Administration (FDA) a stinging rebuke over its handling of the approval process for the Plan B morning-after pill during the Bush administration. The Plan B drug, sold by Barr Pharmaceuticals (acquired by Teva Pharmaceutical Industries), is a contraceptive pill that "reduces the chance of pregnancy if taken within three days after sex."

According to U.S. District Judge Edward Korman's ruling, politics improperly infected the agency's decisionmaking when it "repeatedly and unreasonably" delayed issuing a decision on the drug. The AP further quoted the judge:

"Korman's ruling said the FDA in several instances had delayed issuing a ruling for suspect reasons and on two occasions took action only to facilitate the confirmation of acting FDA commissioners whose confirmations had been held up by the repeated delays.

'These political considerations, delays, and implausible justifications for decision-making are not the only evidence of a lack of good faith and reasoned decision-making,' Korman said. 'Indeed, the record is clear that the FDA's course of conduct regarding Plan B departed in significant ways from the agency's normal procedures regarding similar applications to switch a drug product from prescription to non-prescription use.'"

As a result of the findings, the judge has ordered that the Plan B drug be made available to 17-year-olds without a prescription, in the same manner that the medication is currently available to women over the age of 18.  Noteably, the court also left untouched various constitutional issues raised in the case.

According to the AP, the FDA had argued in court filings that "politics played no role in the agency's decisions." However, the evaluation of the drug has been plagued by reports of politics and/or religion affecting the entire process. Despite the 30 days that today's order gives the government for compliance, a government attorney has indicated that the agency is "studying the decision and evaluating options". At the same time, it also remains to be seen what effect, if any, the change in administration plays in a further review of the drug.

Everyone knows Benjamin Franklin's adage that nothing in life is certain but death and taxes, but some of the wealthiest Americans may have gotten away with avoiding at least some of their tax obligations according to a recently released review of the IRS' audit rates for millionaires.

The Associated Press reports that the Transactional Records Access Clearinghouse (TRAC), an IRS watchdog based out of Syracuse University, issued the results of a study Monday showing the audit rate for those with incomes of $1 million or above falling to 5.6 percent in fiscal year 2008 from 6.8 percent in 2007.  The overall number of millionaires audited declined from 23,200 to 21,874, according to the study, even as the overall number of millionaires filing tax returns went from 339,138 to 392,776.

The group called the decline in audits "surprising" given the growing federal budget deficit.  The Obama administration has already projected a record deficit of $1.75 trillion for the current budget year, and congressional auditors have warned of deficits totaling $9.3 trillion over the coming decade.

TRAC also claimed that the audit figures clashed with statements made by the IRS last year that it had taken great strides forward in its income tax enforcement, especially for millionaires. 

IRS spokesman Terry Lemons defended the agency's audit record, however, calling the decrease in millionaire audits "slight".  Lemons attributed the decline to budget constraints coupled with the added responsibility of ensuring the timely delivery of stimulus checks.

Lemons also pointed out that the IRS still audits millionaires much more fequently than those in lower income brackets.  "[I]f you are a millionaire you are a lot more likely to be hearing from the IRS," he told the AP.  He also noted the fact that taxpayers with incomes of more than $10 million face an almost one-in-10 chance of an audit.

The audit rate for those with incomes of less than $200,000 remained mostly unchanged at a little less than one percent.  The audit percentage rose slightly for those with incomes between $200,000 and $1 million, from 2.87 percent to 2.94 percent. 

The TRAC report highlighted the importance of reviewing the tax returns of those with high incomes because of the high rates of recovery from those audits.  When a millionaire audit resulted in a recommendation of additional taxes, the average amount suggested after a face-to-face audit was $198,000.  Audits conducted by correspondence resulted in an average additional tax suggestion of $137,000.

Last year was the first year in a decade that the IRS' enforcement revenues dropped, from $59.2 billion in 2007 to $56.4 billion in 2008.

Smoking Smarties the Next Hazardous Fad for Kids?

Most people are probably familiar with the little rolls of powdery, sugary candy "tablets" frequently given out at Halloween. Yes, we're talking about "Smarties", but the little candy has been making unwelcome news headlines lately, with stories of kids "smoking" the candy.

Apparently, the practice isn't really so much "smoking" (there's no fire involved), as much as snorting or inhaling and then blowing out candy "smoke". Kids have taken to this practice for a variety of misguided reasons. One teen told the Wall Street Journal that "smoking Smarties [is] a 'cultural phenomenon' and says he likes it because 'it looks like you're smoking something but you're not.'" One YouTube user thought of it more as a prank, "To freak your mom out, sit behind a chair and just blow smoke up in the air with your mom in the room."

The WSJ described how kids go about smoking Smarties as follows:

"They crushed it into a fine powder in its wrapper, tore off one end, poured the powder into their mouths and blew out fine Smarties dust, mimicking a smoker's exhale."

That doesn't sound exceedingly alarming at first glance, but health experts say that "smoking" smarties is not too smart. A Mayo Clinic nose specialist "cautioned that frequent use could lead to infections or even worse, albeit rare, conditions, such as maggots that feed on sugary dust wedged inside the nose." It's probably tough for parents to come up with something more effective to convince their kids not to try this fad than by telling them they could end up with maggots up their nose.

Although a quick online search doesn't turn up any noteable injuries associated with smoking Smarties for purposes of legal liability, the candy's maker, Ce De Candy of New Jersey, is still not thrilled with this kind of publicity. The company's vice president of sales and marketing, Eric Ostrow, told the WSJ that smoking their product is "just dumb." However, the Business Insider also noted just how easy it is for an undesireable fad to catch fire in today's social-media world. Even though many of the YouTube videos were made long ago, it is only recently that one "video now appears near the top of the Google results page in a more general search for just 'Smarties.'" Ostrow continued, "It's certainly not endorsed by us. We don't endorse smoking, but we can't control what people do out there."

Companies face a tough task in how they deal with their brand and/or product being associated with an undesireable practice, such as smoking (which Ce De Candy actually banned at its factory in the 1980s, well ahead of its time). Although many might say that any PR is good PR, the association of kids, candy, and smoking might be a bit much. But for now, the company is apparently opting to simply disassociate itself with the practice and hope that the whole issue will blow over.

On the bright side, recent news stories have highlighted a government study noting that "[f]ewer teens are sniffing glue, lighter fluid, spray paint, shoe polish and other easy-to-find substances." Regardless, parents still might want to go ahead and just give their kids a heads up to be smart and just eat their Smarties.

The AP reported today about a toddler found by deputies on Tuesday who was "wandering alone on a Texas street", while back at his mother's home police found methamphetamine and more than a dozen snakes. This disturbing news almost has the makings for a joke with a punchline like"...'Well, officer' the toddler replied, 'Honestly I felt safer out here.'" But this case is no joke, as the toddler's mother, Tamara Jones, has been charged with criminal neglect and possession of a controlled substance, and is out on $75,000 bond.

In addition to the criminal charges, Child Protective Services is reportedly investigating the situation, according to KFDM News. In the meantime, the two-year-old boy has been placed in the care of his grandmother until the investigation is complete.

Jones actually made it a point to contact KFDM to set out her side of the story, although it's debatable whether that will help or hurt her case. Defense attorneys regularly advise their clients in similar circumstances not to make uncounseled, public statements about the facts of a case, because as well intentioned as an explanation may be, it can be misunderstood and/or used against a defendant later on. This is one reason why, in high-profile criminal cases involving celebrities or sports figures, often an attorney will be hovering over their shoulder at press conferences, ready to hush their client if they cross into details about a case. At any rate, here's Jones's take on how her son got out to the street:

"I had just had a tooth pulled Monday and was given anesthesia, and I was up with my son all morning Tuesday...I laid down to take a nap while he was sleeping. He's very smart and he got up and unlocked the back door and opened it. My husband was at work. My son had barely made it around the corner."

As for the drugs:

"Someone staying in my home had left the meth," said Jones. "I'm not denying it was there. I just hadn't had the chance to do anything with it. I had a bad injury to my knee and then the dental visit and I just hadn't gotten up and moving around that good yet. I didn't just want to toss it in the garbage where my kids could get to it. It might have been there about a week. It wasn't out in the open for the children to get access to. We don't use or sell drugs."

And finally, the snakes:

 "I have two, 8 foot Colombian red-tailed boas, corn snakes, king snakes. There are padlocks on the cages and the snakes are in a room by themselves. I enjoy collecting snakes. My children are well educated about them. Me and my husband are always around when the snakes are out."

That may well be so, but police aren't betting on it. One officer stated, "They could still have some snakes hidden in there because my officers really didn't want to look too closely...We didn't stick our hands in there." 

The virtual parade of professional athletes committing DUI-related offenses appears to be going strong, but this time the stakes are high. On the heels of Charles Barkley's serving relatively minor jail time for his DUI offense, NFL wide receiver Donte' Stallworth is now reported to have been driving over the legal limit when his car struck and killed 59-year-old Mario Reyes in Miami Beach last weekend. In addition to the human tragedy of the case, the potential legal charges against Cleveland Browns player Stallworth are vastly more serious than the celebrity DUI offenses typically seen in the news.

However, there has been an inordinate amount of attention focused on the blood test results since the time of the accident. But this might just perpetuate the myth that the .08 BAC limit is the be-all, end-all issue in these types of cases. In Florida, the .08 level is simply the point at which the law presumes an individual is impaired and driving under the influence. On the other hand, simply because someone tests below .08 does not mean that they are, by definition, innocent. Other evidence such as sobriety tests, on-the-scene observations, witness testimony, etc. can be used to establish that a driver's "normal faculties" were impaired.

That said, the Miami Herald reports that "a source with knowledge of the investigation" has indicated that Stallworth's blood alcohol level was .14. This should probably be taken with a grain of salt, as "Miami Beach police would not confirm whether the blood tests were complete, saying the results would not be released until their investigation is complete." Further, Stallworth has not been charged and has reportedly been cooperating with the investigation.

As noted previously, a fatality in a DUI case often carries very serious penalties, and Florida certainly makes no exception. DUI manslaughter in Florida is committed when someone who is under the influence (as described above), "operates a vehicle", and "causes or contributes to causing" a person's death. The offense is classified as, at least, a second degree felony subject to a 15 year maximum sentence, and would be subject to minimum mandatory jail time.

Petland Faces "Puppy Mill" Claims in Class Action Suit

Petland Inc., one of the nation's largest pet store chains, intentionally sold unhealthy puppies that came from disreputable breeders known as "puppy mills," according to a lawsuit filed this week by an animal rights group.

The lawsuit, which seeks class action status, was filed on Monday by six puppy purchasers and the Humane Society of the U.S. (HSUS), against Ohio-based pet store chain operator Petland, Inc. and The Hunte Corporation, a distributor of puppies to pet stores. According to an HSUS News Release, the lawsuit “alleges that Petland and Hunte violated federal law and numerous state consumer protection laws by misleading thousands of consumers across the country into believing that the puppies sold in Petland stores are healthy and come from high-quality breeders,” when in reality, the suit claims, "[m]any of the puppies sold by Petland come either directly from puppy mills or puppy brokers such as Hunte, which operates as a middleman between the mills and Petland's retail stores."

In a Petland News Release that refers to the Humane Society as a "radical" group, company Vice President Joe Watson denies the allegations, saying that Petland puppies receive examination and health certification from licensed veterinarians prior to arrival at stores, and again before being taken home by a customer. Watson also states that the company advises new puppy owners to have their pets examined within the first week after being taken home.

A Columbus Dispatch article on the Petland lawsuit details the plight of one of the plaintiffs, Ruth Ross of Circleville, Ohio. Ms. Ross alleges that she purchased a puppy from Petland and spent more than two months nursing the dog through ailments like kennel cough, bronchitis, and pneumonia.

Two words that probably don't get put together often in any word association game are "Scout" and "criminal". Fortunately for Brian Lenz, an Eagle Scout accused of aggravated assault stemming from a deadly trick-gone-wrong, it's going to stay that way for him. The AP reported today that Lenz "appeared in court Thursday to plead not guilty to aggravated assault and was admitted into a pretrial intervention program that will enable him to avoid jail time or even a criminal record."

The AP described the tragic incident which led to today's plea, stating that last year on a "hot July night at Boy Scout camp" at the Joseph A. Citta Reservation in Waretow, New Jersey, 18-year-old camp counselor Lenz:

"decided to show the younger boys a trick: the "circle of fire," in which he would squirt rubbing alcohol in a pattern on a table and set it aflame.

It would look cool. And it would quickly burn out.

When Lenz tried to reignite what he thought was a dying flame, fire leapt from the table along the stream of liquid, back into the squeeze bottle he was holding.

Instinctively, he shook his hand, flinging the burning bottle away and inadvertently spraying flaming alcohol onto the other scouts..."

One of the three Scouts burned, 17-year-old Sean Whitley, died four days later, while the other two recovered from their injuries. Lenz, however, ended up in serious legal trouble, sued by Whitley's family and also criminally prosecuted for his actions. However, the end result in this case might have some wondering why authorities even bothered pursuing Lenz criminally, considering the circumstances.

Prosecutors have wide discretion as to the extent to which they charge, prosecute, and/or make deals with individuals suspected of criminal offenses. However, in this case Executive Assistant Ocean County Prosecutor Michael A. Paulhus indicated they only took the route of the pre-trial intervention (PTI) program after the prosecution "...spoke extensively with the victim's parents and they agreed to this disposition".

The Asbury Park Press story continued, "[h]ad the Whitley family not agreed with Lenz's admittance to the PTI program, Paulhus said, his office was prepared to seek a criminal indictment from a grand jury." Although most people picture assault as an intentional crime, one law firm's site outlines New Jersey's aggravated assault statute and explains the varieties of assaults included. Noteably, under the state's aggravated assault statute, a person can be guilty of third degree aggravated assault in a variety of ways including when in "under circumstances manifesting extreme indifference to the value of human life [he] recklessly causes such significant bodily injury" or also if he "[c]auses bodily injury by knowingly or purposely starting a fire".

Going back to the Eagle Scout's case, as noted by Paulhus, "[t]he Boy Scouts of America have long-standing and effective policies ... The situation that took place was kids doing what kids weren't supposed to be doing." Fortunately for Brian Lenz, successful completion of the PTI program will allow him a second chance at moving on without a criminal record.

March Madness, The Big Dance and Trademark Infringement

March Madness tipped off today, but the full court press against alleged infringers of NCAA trademarks started long ago.

The LA Times reports that according to lawyers for the NCAA, the economic downturn and increased internet options have resulted in more people trying to turn a buck off the NCAA's trademarks. These trademarks include March Madness, The Big Dance, Elite Eight, Final Four, and a slew of others.

Some of these phrases had long histories prior to NCAA use. For example, as explained by Slate, March Madness was coined in 1939 by Henry V. Porter in relation to Illinois high school basketball. Legal wrangling between the Illinois High School Association and the NCAA resulted in a sort of joint ownership, with the NCAA being able to stop others from using it in relation to college basketball.

So, what exactly constitutes trademark infringement? Trademark infringement is commercial use of a trademark that is likely to cause confusion amongst consumers as to the source of the goods or services being sold. Commercial use typically means earning or soliciting some sort of income from use of the trademark. Off-shoots of the trademark (like March Badness) would also be off limits if they are close enough to still cause consumer confusion about the source of goods or services.

If a trademark is found to be "famous," its owner may sue for trademark dilution, even if there is no likelihood that consumers will be confused. Dilution means commercial use that decreases the value of a famous trademark through "blurring" or "tarnishment." Blurring means causing a famous trademark to become associated with different goods or services. Tarnishment means causing it to become associated with something inferior or unseemly.

CNN reports that Natasha Richardson, the award-winning actress and wife of Liam Neeson, has passed away after a ski accident. The news may have many people understandably wondering about the fragility of life and health. After all, Natasha Richardson was relatively young at 45, and by all accounts healthy, vibrant and full of life. Adding to that, she suffered the fall while skiing on a beginner's slope. The accident has renewed calls for helmets while skiing, but while there may be merit to those suggestions, some suggest that a helmet might not have made any difference.

Although questions about whether Richardson's death might have been prevented are already being asked, the circumstances leading up to her tragic passing, particularly her apparent incapacitation and the decision to take her off of life support, do emphasize the importance of taking on a task that people often overlook or put aside for later. A FindLaw poll conducted last year indicated that nearly 60 percent of Americans don't have a will.

Hand in hand with that fundamental problem, which affects a person's assets and their children, is the fact that the same individuals probably make no legal provision for what would happen if they become incapacited and unable to express or communicate their wishes. Aside from leaving their own health care desires unfulfilled in the event of a tragedy, this can also leave a person's family to make difficult choices in an already emotional and stressful situation. In a worst-case-scenario, such uncertainty can end up in drawn-out legal battles over a person's fate.

There are a variety of legal tools that can be used to address the issue, but two in particular stand out. First, a living will, which can also go by the name of a healthcare directive or directive to physicians, is a document that expresses a person's desires and preferences about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. Living wills are allowed in all states, but sometimes they must follow specific formalities to be effective. If valid, a living will binds health care providers to its instructions.

The second tool people may have heard about is a durable power of attorney for health care or health care proxy. A durable power of attorney for health care is somewhat similar to a living will, but functions to actually put the health care decision-making power in the hands of another person (an "attorney-in-fact"). The document can then direct the attorney-in-fact to carry out a living will's instructions, or alternatively, use their own judgment in following a course of action. Unlike a living will, a durable power of attorney does not depend on terminal illness or permanent unconsciousness to become effective, but instead is used if the person is unable to make their own healthcare choices (permanently or otherwise).

In the event a loved one is stricken with a sudden illness or tragic accident, the last thing a family probably wants to deal with is any arguments over health care decisions. The use of a living will and a durable power of attorney are good ways to keep what is already a difficult time from becoming even tougher.

As part of the Obama Administration's goal of getting the housing market back on solid ground, the federal government has launched a new website, makinghomeaffordable.gov. To help stem the foreclosure tide and keep people in their homes, the new portal gives financially-strapped homeowners the latest information on reducing mortgage payments through refinancing and mortgage modification.

"Through the Making Home Affordable Program, up to 9 million American families may be eligible to refinance or modify their loans to a payment that is affordable now and into the future," according to Making Home Affordable FAQs. The new website offers a self-assessment tool to let homeowners determine their eligibility for Home Affordable Refinancing and Home Affordable Modification, look up their loans with Fannie Mae and Freddie Mac, find a housing counselor who can help decide what mortgage options are best (free of charge), and much more. Check out the new MakingHomeAffordable.gov.

"Putting resources and tools directly in the hands of homeowners will expedite the process of delivering relief to responsible homeowners, and stabilizing the housing market is central to our overall economic recovery," Treasury Secretary Timothy Geithner said in a statement announcing the new website, as reported by Reuters.

Time off Work for Jury Duty, Even if You're Kobe Bryant

Just like everybody else, celebrities can get called for jury duty. Even NBA superstar Kobe Bryant. And like the Lakers did today, employers must excuse employees from work while they perform their civic duty.

 

Bryant reported yesterday for jury duty in Santa Ana, California. As the OC Register reported, though Bryant has previously sought to be excused on occasions when the Lakers were on the road or in the playoffs, the Laker star saw it as important to report and serve when called on one of the team's off days. The Register quoted him as saying that "[e]veryone has to do their duty," and that you "have to take it seriously."

 

Just like the Lakers had to make due without Bryant at practice today, employers are obligated to allow employees time off work when they are called to do their civic duty.

 

If it's a jury for a federal trial, federal law prohibits an employer from disciplining or firing an employee for time missed while reporting or serving on a jury. For trials in state court, the vast majority of states prohibit disciplining or firing an employee for jury service, and some even prohibit an employer from encouraging the employee to try to get out of jury duty.

 

Do employers have to pay for time spent in jury service? In most states, there is no legal requirement to pay, leaving it up to the employer's policy. A few states, however, require employers to pay for some of the time served, or for the employee to accrue paid leave for the time spent on jury duty. For state specific rules, contact your state's labor department.

 

In the end, TMZ reported that Bryant was excused from being on the jury. However, he was one of the last to be excused, and cited his being a good listener as one reason he would be a good juror. As for his day job, "Go Lakers," said the judge.

A Connecticut kindergarten teacher has been arrested after she allegedly gave an unusual "lesson" to a student. Last Thursday, 67-year-old Anne O'Donnell, a teacher at Park City Magnet School, supposedly made a 5-year-old student eat some food he threw away in a garbage can. She was arrested on Tuesday and now faces a charge of risk of injury to a minor.

The AP reported on officials' description of the incident as follows:

"...the charge stems from an incident last week when the boy apparently tossed out his lunch of chicken nuggets and a banana from the school cafeteria.

The teacher is accused of retrieving the items from the garbage can and forcing the boy to eat them in front of her."

However, a local news story paints a far less dramatic or drastic portrait of the story. Superintendent of Schools, John Ramos, told the Connecticut Post O'Donnell explained her side that "she was concerned the student had not eaten his lunch and asked that he eat the banana" (hopefully, it was peeled after-the-fact). Ramos noted that the state's Department of Child and Family Services was "informed of the incident, but its officials did not pursue the case," possibly because the allegations did not meet the "statutory definition of abuse or neglect".

To be fair to O'Donnell, keeping order and discipline in a classroom, particularly one filled with very young children, can sometimes be a challenging endeavor for teachers. Certainly detention, suspension and expulsion are commonly heard-of and legal forms of school discipline, but what about discipline in the classroom? Actually, parents might be surprised to know that states and localities vary widely in the extent of discipline and/or punishment allowed in a classroom.

Often, the issue comes up in the context of corporal punishment. Some parents might be under the impression that corporal punishment (i.e. spanking, paddling, etc.) is illegal. That might be the case, but in actuality, corporal punishment remains legal in over 20 states. Last year, CNN noted that according to a government report, corporal punishment is used "frequently" in 13 of those states: Missouri, Kentucky, Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Georgia, South Carolina, North Carolina, Tennessee and Florida. However, even in states where it is legal, it is often up to individual school districts to determine whether corporal punishment is permitted. Some school districts allow parents to sign a waiver form and opt out of corporal punishment, too.

At the federal level, the Supreme Court addressed corporal punishment in schools in its 1977 ruling in Ingraham v. Wright that the Eighth Amendment's cruel and unusual punishments clause does not apply to disciplinary corporal punishment in public schools. Moreover, in the same case, the court said that Constitution's Due Process Clause does not require notice and a hearing before the imposition of such punishment. Last year, the Supreme Court turned down a case of a San Antonio teen paddled for the infraction of leaving campus to go get breakfast. At this time, discipline in school, corporal or otherwise, remains a matter for states and local school districts to deal with.

Postnuptial agreements, like prenuptial agreements, can set out how property will be divided upon divorce. They have been increasingly advocated as a way to calm a troubled marriage by reducing uncertainty. However, as a high dollar divorce in Connecticut currently illustrates, it is very important to make sure a postnuptial agreement will be enforceable.

The Hartford Courant reports that the soon-to-be ex-wife of former United Technologies Corp. Chairman and CEO George David has asked a Connecticut court to invalidate the couple's 2005 postnuptial agreement. Marie Douglas-David's problem with it? The $43 million it allocates to her won't support the Swedish countess' $53,000 per week lifestyle. If the agreement is thrown out, Mr. David may have to shell out a much larger chunk of his estimated $329 million in assets.

The problem that Mr. David may encounter is that courts can be more exacting of postnuptial agreements than they are of prenups. The law of postnuptial agreements varies from state to state, and in many places remains in flux. Some states treat them like prenups, but other states are harder on them.

Unlike prenups, postnups in some states require "consideration" (something of value) from both sides. Amongst those states, some say that a promise to remain in the marriage is consideration enough, while others require more. In some states, postnuptial agreements must be substantively fair.

Here are five things you can do to make a postnuptial agreement more likely to stand up:

  1. Have both side represented by their own attorneys.
  2. Disclose absolutely all of your income and assets.
  3. Make sure both sides are giving something of value in the deal.
  4. Have both sides write and sign their own explanation of why they are entering the agreement and what it means.
  5. Make it fair.

Some have suggested that Bernard "Bernie" Madoff's Ponzi scheme was far too large and widespread for him to have pulled it off alone. Various reports have suggested that his wife, Ruth, would be pursued for her assets, and also possibly charged. Then their sons' assets were targeted by the government. However, according to the AP, it turns out that CPA "David Friehling, 49, who ran a small storefront firm in a New York suburb, is the first person besides Madoff to be arrested on criminal charges in the long-running fraud."

The AP summarized the allegations indicating that Friehling:

"'pretended' to conduct audits of the confessed swindler's investment firm, authorities said Wednesday in charging him with fraud going back 17 years in the biggest investment scheme on Wall Street."

Further, the AP noted how the SEC's complaint alleged Friehling and his CPA firm:

"did not perform anything remotely resembling an audit" of Madoff's money management firm or try to confirm that stocks that Madoff had purportedly bought for customers even existed.

Undoubtedly many will wonder what, if any, oversight failures were involved in this case. However, the SEC's complaint indicates that Friehling "falsely represented" to the American Institute of Certified Public Accountants (AICPA) that he was not engaged in accounting work. In this manner, he "avoided the AICPA's peer review requirements" which could well have discovered the misconduct far earlier. Nevertheless, the allegations in the civil and criminal complaints are far-reaching and may leave the door open to the possibility that the web of fraud is just starting to unravel.

As noted by the AP, "Friehling's fraud ran from 1991 to 2008, and according to the SEC, he 'essentially sold his license to Madoff for more than 17 years while Madoff's Ponzi scheme went undetected.'" Below are links to key legal documents and news coverage in the case.

Get Free Tax Help from the IRS on Saturday, March 21st

Taxpayers who earn $42,000 or less can get free tax preparation services this Saturday (March 21st) at more than 1,250 locations nationwide, under the Internal Revenue Service's annual "Super Saturday" tax filing assistance program.

The free income tax return filing assistance will be provided at more than 250 local IRS Taxpayer Assistance Centers that will be open on Saturday, and more than 1,000 community organizations that are partnering with the IRS to offer free taxpayer help. See the IRS "Super Saturday" Announcement for a state-by-state list of participating organizations and locations.

According to the IRS, it isn't just lower-income filers who can benefit from Super Saturday's offer of tax help: "Super Saturday is an opportunity for people, regardless of income, who may have a tax issue or who may be unable to pay their tax bill to visit an IRS Taxpayer Assistance Center. The IRS can work with people to set up payment option plans that will prevent even greater penalties and interest. The IRS is committed to doing what it can to help financially distressed taxpayers who have played by the rules."

The Washington Post points out that free filing assistance can come in especially handy for taxpayers who have purchased a home since filing their last return: "Often buying a home moves you from the simple Form 1040-EZ to the much more complex Form 1040. And this year, tax credits for new buyers could add an additional layer of paperwork."

A court document filed today indicates that DJ AM is looking for $20 million in damages from Learjet and other defendants for the airplane accident that left him and former Blink-182 drummer Travis Barker with severe burn injuries. Four others, including the pilots, as well as Barker's assistant and bodyguard, were killed in the crash which occurred in South Carolina on Sept. 20 of last year.

The AP noted that DJ AM, whose real name is Adam Goldstein, is "seeking $10 million for medical expenses, lost earnings, profits and economic damages and another $10 million related to non-economic losses, such as mental and physical pain".

In January, Learjet denied responsibility for the accident in court papers, specifically stating "Learjet alleges that any and all conditions [of the aircraft], if any there were, were solely a result of the failure to properly maintain and service the aircraft". Furthermore, Learjet suggested that "the damages suffered by the plaintiffs were 'either excessive, exaggerated, unreasonable, speculative, inflated or otherwise unnecessary and/or unrelated to the alleged incident.'"

Airplane accidents, as can be imagined, are very complex and the lawsuits stemming from such accidents usually involve a variety of defendants, ranging everywhere from the manufacturers of the plane and its parts, to the pilots and owners of planes, and even providers of planes' maintenance. The lawsuits arising from this accident are no exception as the finger of blame has been pointed everywhere from the pilots, to Goodyear (who made the plane's tires), to the airport.

An earlier article noted that federal aviation officials were "focusing on bare tires and debris on the runway as the causes of the crash". The National Transportation Safety Board (NTSB), which is the agency charged by Congress with investigating every civil aviation accident in the United States, has preliminarily indicated both that "the wheels had very little rubber remaining and its brakes were severely damaged" and that the "cockpit voice recorder indicated that crewmembers expressed their belief that a tire blew as the jet was on the runway."

However, various of the companies being sued have asked for a delay until the government's investigation is entirely complete.

The family of Charla Nash has sued Sandra Herold, the owner of the chimpanzee who mauled Nash, for $50 million. While Nash remains in critical condition, the lawsuit claims that Herold caused the attack by negligently and recklessly owning a wild animal that she could not control.

Nash has remained in critical condition since the Travis Chimp mauled her on February 16. As reported by the Greenwich Times, the attack cost Nash her hands, lips, nose, eyelids and bone structure in her mid-face. She has also suffered significant brain damage.

Nash was a friend and employee of Herold, and had long known Travis. As covered previously in this blog, she was called over to Herold's house to help calm Travis, who had been agitated all day. According to the AP, Herold has speculated that Travis attacked Nash because he did not recognize her. She had changed her hair, was driving a different car, and waived a stuffed animal in front of her face to get his attention.

Nash's twin brother Michael was named her temporary conservator, allowing him to make medical and legal decisions on her behalf. In addition to the lawsuit, lawyers representing Nash have demanded an accounting of Herold's assets in order to prevent her from transferring them.

Local prosecutors are still deciding whether to file criminal charges against Herold. According to the Greenwich Times, police are still waiting for the results of toxicology tests on Travis. Herold initially stated that she had attempted to calm Travis on the day of the attack by giving him Xanax. She has since said that she did not give the chimp Xanax.

Though Connecticut has a dog bite statute which renders a dog owner strictly liable for most injuries caused by their dog, the statute does not cover normally wild animals such as chimpanzees. Generally, this means that the victim must prove negligence on the part of the owner -- that the owner knew or should have known of the animal's dangerous propensities.

As the case of Travis may well show, proving that someone should be aware of a wild animal’s propensity for danger may not be such a high hurdle. As reported by the AP, two people have claimed that Travis previously bit them (in 1996 and 1998). Additionally, an escape by Travis in 2003 prompted an animal control officer warn Herold that she needed to keep him under control.

Is it getting to the point where you can't hold your favorite piece of portable technology without worrying about your health? It has been bad enough, what with reports of exploding cell phones, or spontaneously combusting laptops, but now the news perhaps many consumers dreaded. Yes, it's the Apple iPod's turn to face the, ahem, fire. A complaint has been filed by a Kentucky mother, Lynette Antrobus, claiming that her son's iPod Touch exploded in his pocket, burning him.

The complaint described the event, stating that her son, A.V. was sitting at his desk at school in Kentucky "with his Apple iTouch in the off position in his pant's pocket." A.V. then "heard a loud pop and immediately felt a burning sensation on his leg." Upon standing he "realized his Apple iTouch had exploded and caught on fire in his pocket" then ran to the bathroom and took off his burning pants with a friend's help.

Setting aside the emotional and psychological disaster that the possible loss of someone's treasured musical vault could entail, the injuries allegedly suffered by the child in this case were nothing trivial. According to the complaint, A.V. "suffered second degree burns to his leg" and "continues to suffer from both physical and mental conditions which will cause him to suffer pain, mental distress, emotional distress, and otherwise for the rest of his life." The suit sets out a variety of theories of liability for the various defendants, including, strictly liability for the defective product, as well as a failure to adequately warn. The bottom line for the injuries suffered by plaintiff, however, adds up to over $200,000 in various types of damages, including punitive damages for defendants' "malicious" actions.

At this time, there has been no comment from Apple on the case, but this isn't the only time someone has reported an exploding iPod Touch (the iPod nano also reportedly had some incidents), so it remains unclear whether this is an isolated incident, or something that could require action from Apple in the future.

FTC Files Charges Against Credit Repair Scammers

Seven "credit repair" companies have been charged with violating federal consumer protection and credit laws by promising to remove negative information from customers' credit reports, even credit information that is accurate and up to date.

According to a Federal Trade Commission (FTC) News Release announcing the filing of a complaint and restraining order, "the defendants charge consumers up to $2,000, including $300 in advance, promising to improve credit scores by removing information such as late payments, charge-offs, collections, inquiries, delinquencies, judgments, and accounts discharged in bankruptcy." Defendants named in the complaint include companies doing business as United Credit Adjustors, Bankruptcy Masters Corp., National Bankruptcy Services Corp., Federal Debt Solutions Ltd., and United Money Tree Inc.

According to the FTC, the defendants' promotion tactics included online ads promising a “100% Guarantee to raise your credit score!” and telephone calls that lured customers with statements like: “I can’t tell you much because I’ll be giving you my trade secrets, but I can definitely guarantee that we’ll take care of anything that’s derogatory on [your] credit report. It’s all legal.”

In reality, there is no way to remove accurate information from your credit report. And if your credit report does show actual errors, you have the right to have those errors corrected for free, under federal law. Otherwise, the only valid and proven "credit repair" tactics are conscious efforts toward debt management and systematic repayment that will improve your credit score over time.

Jury selection began today in the criminal case of controversial abortion figure Dr. George Tiller, the AP reports. Dr. Tiller is "one of the nation's few late-term abortion providers" and has been charged with "19 misdemeanors alleging he failed to obtain a second opinion for late-term abortions from an independent physician, as required by Kansas law. If convicted, the Wichita doctor could face a year in county jail or a fine of $2,500 for each misdemeanor charge."

Dr. Tiller has "virtually become public enemy No. 1 to those who oppose abortion", and has certainly faced a variety of challenges in past years, both legal and illegal, for that matter:

"Tiller and his clinic have been a target of abortion opponents for decades. His clinic was bombed in 1985, and an abortion opponent shot him in both arms in 1993."

In a trial which involves a highly controversial and/or polarizing subject such as abortion, jury selection can be challenging. The AP noted how Assistant Attorney General Barry Disney told prospective jurors in Tiller's case that they had to "set aside their personal views about abortion, and at least one was dismissed after she said she couldn't."

Disney added, "This trial is not a debate about abortion" and "[i]t is not about whether abortion is right or wrong. ... This trial is about whether the defendant has violated the law." Although this can be a tough task in emotionally charged or controversial trials, Dr. Tiller's trial might be somewhat more straightforward since it apparently boils down to one, more technical issue.

According to Disney, "prosecutors and defense attorneys agree that Tiller performed the 19 late-term abortions and that he was required to obtain a second, independent opinion." The only thing left for jurors to decide is whether another physician, Dr. Ann Kristin Neuhaus, who provided Tiller with second opinions, had a financial or legal relationship with him.

Why is that the crucial issue? The Kansas statute covering late-term abortions states that:

"No person shall perform or induce an abortion when the fetus is viable unless such person is a physician and has a documented referral from another physician not legally or financially affiliated with the physician..." (Emphasis added)

Thus, if Tiller's referral came from a physician with whom he had financial ties, the referral would be invalid for purposes of the Kansas abortion law. Noteably, Neuhaus has been granted immunity from prosecution and could testify in the case. However, Tiller's defense attorneys defend his innocence and "have called his prosecution a 'hyper-technical political trial.'"

Children's bath products, including shampoos, soaps, lotions and bubble baths marketed as safe and gentle actually contain cancer causing chemicals, according to a report released by the Campaign for Safe Cosmetics (CSC). The report found that widely used brands of bath products for kids contain formaldehyde and a chemical called 1,4-dioxane.

The "No More Toxic Tubs" report was based on independent testing of 48 children's bath products for 1,4-dioxane and testing of 28 products for formaldehyde. According to the National Cancer Institute, formaldehyde has been identified as causing cancer in humans by the International Agency for Research on Cancer, and as a probable human carcinogen by the US Environmental Protection Agency.

According to the U.S. Department of Health and Human Services, 1,4 dioxane is a clear liquid that easily dissolves in water and is used in the manufacture of chemicals. The Department of Health and Human Services currently considers 1,4 dioxane as "reasonably anticipated to be a human carcinogen." The Boston Globe quotes the U.S. Consumer Product Safety Commission as stating that "the presence of 1,4-dioxane, even as a trace contaminant, is cause for concern."

As the Globe reports, Japan and Sweden currently ban formaldehyde from personal care products, and the European Union has banned 1,4 dioxane. Currently, the US does not limit the amount of either substance in cosmetics, including bath products for kids. Don't bother checking labels for these chemicals because US regulations currently do not require product labels to include the presence of either chemical.

The testing behind CSC's report showed that 67% of the 48 products tested for 1,4 dioxane contained the chemical in amounts 0.27 parts per million or higher. Of the 28 products tested for formaldehyde, 61% contained both formaldehyde and 1,4 dioxane, and 82% contained formaldehyde at 79 parts per million or higher.

Products containing both chemicals included: Johnson's Baby Shampoo, Baby Magic "Soft Baby Scent" Baby Lotion, Sesame Street Bubble Bath, multiple scents of Bath & Bodyworks' American Girl Real Beauty Inside and Out Shower Gels, Gerber's Grins & Giggles Milk & Honey Baby Wash, Huggies Naturally Refreshing Cucumber & Green Tea Baby Wash, Barbie Berry Sweet Bubble Bath, Dora the Explorer Bubble Bath and Tinker Bell Scented Bubble Bath, amongst others.

The highest level of 1,4 dioxane was found in Bath & Body Works' American Girl Real Beauty Inside and Out Shower Gel – Sunny Orange. The highest level of formaldehyde was found in Baby Magic "Soft Baby Scent" Baby Lotion.

As the media-fed public furor grows over struggling insurance giant American International Group's (AIG) payout of millions in bonuses to executives, the New York Times reported that President Obama announced he has requested that Treasury Secretary Timothy Geithner pursue "every single legal avenue" to prevent the bonuses. This comes just after AIG on Sunday "unexpectedly released the names of dozens of trading partners it has paid using billions in taxpayer dollars". Despite AIG's sudden, about-face move toward increased transparency, the company continued to draw fire, being called by President Obama "a corporation that finds itself in financial distress due to recklessness and greed".

However, some might be wondering if, despite officials' expressed anger, there is actually something that can be legally done to actually stop the payouts?

Well, first off, "every single legal avenue" mentioned by President Obama is not going to include a courtroom, according to the New York Times article:

"White House officials said that the administration is not looking to take A.I.G. to court to stop the company from paying out the bonuses. But they said the Treasury Department would be trying to figure out what they can do to block A.I.G. from making the payments within the legal confines of A.I.G.'s contractual obligations to the executives."

The reason is that, although the government has formidable legal resources and powers at its disposal, making a private company's pre-existing contracts with a private third party disappear is not one of them. Indeed, such government action is prohibited and, at any rate, could require the government itself to pay compensation for the loss of the contract's value. So, the "legal confines" of AIG's contractual obligations might be pretty ... well ... confining. The government has acknowledged as much, noted the Washington Post:

"In early 2008, before the government rescue, the firm's employees had been promised more than $400 million in retention pay this year and next. Lawyers for the government and AIG have agreed that most of those payments, however unsavory, are legally binding. "

So does that leave the government holding any cards? Maybe a whole lot of bailout fund leverage, appears to be the answer. The government is under no obligation to provide any funds to AIG, and can tie a variety of strings to such payments, as long as they do not eliminate already-existing contracts AIG has made. Also, AIG itself appears to be taking steps to try and stem the tide of public opinion (and governmental "outrage"), noted CNN:

"In a letter to Geithner, obtained Saturday by CNN, AIG Chairman and CEO Edward Liddy said his company was taking steps to limit compensation in AIG Financial Products -- the British-based unit responsible for issuing the risky credit default swaps that have brought the company to the brink of collapse...

In the letter to Geithner, Liddy said the unit's 25 highest-paid contract employees will reduce their salaries to $1 this year and all other officers in the unit will reduce their salaries by 10 percent. Other "non-cash compensation" will be reduced or eliminated. But he told Geithner that some bonus payments are binding legal obligations of the company, and "there are serious legal, as well as business consequences for not paying."

Despite this, Congress itself may take on the issue, as there already have been moves "to limit compensation for executives at banks and Wall Street firms that are receiving government help to survive."

African-American borrowers who secured subprime mortgage loans from Wells Fargo and HSBC -- two of the nation's biggest banks -- were much more likely to receive higher interest rate loans than similarly-qualified white customers, according to two class action lawsuits filed late last week by the NAACP.

The class action lawsuits allege that the banking giants violated the Fair Housing Act, Equal Credit Opportunity Act, and the Civil Rights Act of 1866 in imposing race-based disparities in their mortgage lending practices. In a Press Release announcing the lawsuits, the NAACP declared that "African American homeowners who received sub-prime mortgage loans from these lenders were more than 30 percent more likely to be issued a higher rate loan than Caucasian borrowers with the same qualifications," and "upper income African Americans are more than twice as likely to receive higher cost loans as their lower income white counterparts." The class action lawsuits seek greater accountability and transparency in Wells Fargo and HSBC's lending practices and decisions.

According to the Los Angeles Times, both California-based Wells Fargo and London-based HSBC have "issued heated denials and said they would defend themselves aggressively," with HSBC delcaring that it "had received no 'substantive reply' when it tried on several occasions to discuss 'issues of concern' with the NAACP."

In a stunning reversal of the Bush administration's policy, the U.S. Department of Justice (DOJ) today announced the elimination of the "enemy combatant" definition used to detain terrorists at Guantanamo Bay without criminal charges. Furthermore, pursuant to executive orders from President Obama, the DOJ will be undertaking a sweeping review of the "detention policy for individuals captured in armed conflicts or counterterrorism operations as well as a review of the status of each detainee held at Guantanamo."

In a press release, the DOJ noted Attorney General Eric Holder declared in a court filing that the new standard for holding detainees:

"...does not rely on the President’s authority as Commander-in-Chief independent of Congress's specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase 'enemy combatant.'"

Attorney General Eric Holder explained the change, "As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law...The change we've made today meets each of those standards and will make our nation stronger."

A CNN report on the announcement indicated that it was unclear how the new "substantial support" standard would affect some detainees:

"The Justice Department did not say how many of the approximately 240 detainees now at Guantanamo may fall within the new definition. The new construct clearly allows for the continued detention of admitted 9/11 mastermind Khalid Sheikh Mohammed and a handful of his acknowledged al Qaeda operatives."

CNN further clarified that "the new definition applies only to prisoners at Guantanamo Bay and not at other military prison facilities". This is of particular note as some commentators have noted recently that, despite President Obama's already clearly stated intention to shut down Guantamo, there may be a number of issues with regards to the United States' detention of individuals in other locations.

Considering past news of former Guantanamo detainees joining terrorist organizations, at times in prominent roles, today's release changing the very standard by which detainees are to be held will surely invite a flurry of comment and debate.

Though they still grapple with tools like computers, cameras and microphones, courts have recently faced a new technological problem: what to do about Twitter. While a $12 million jury verdict in Arkansas is threatened by one of the juror's in-trial tweets, a federal court in Kansas recently made headlines for allowing a reporter to cover a trial with Twitter. These cases illustrate the good and the bad in any tool used for communicating what goes on in a trial, and why reporters twittering could be good, while juror twittering is bad. 

Twitter is a social networking tool that allows users to post messages (or "tweets") to a website that displays updates which other can track. It is being used in more and more settings (you can tweet this blog entry, for example, with the buttons to the left). One setting posing potential problems, however, is the courtroom.

In Arkansas, the AP reports that Stoam Holdings and its owner Russell Wright have appealed a recent loss of a $12 million jury verdict in part based on the fact that a juror was allegedly tweeting during the trial. Stoam Holdings is purported to be one of many "Stoam" ventures by Mr. Wright used to bring in investment dollars. Two former investors alleged the operation to be a Ponzi scheme instead of legitimate investment in Wrights plans to manufacture "stoam," a material combining the insulating power of foam with the strength of steel.

Evidently, the case against Stoam prompted "Juror Johnathan" (Johnathan Powell of Fayetteville, Arkansas) to post twitter messages including, "oh and nobody buy Stoam. Its [sic] bad mojo and they'll probably cease to Exist, now that their wallet is 12m lighter." Bad mojo indeed. An attorney for Mr. Wright and Stoam Holdings have filed a motion seeking a new trial on the theory that Juror Johnathan consulted outside information and communicated with outside people about the trial.

Meanwhile, in Wichita, Kansas, last week U.S. District Judge Thomas J. Marten allowed a reporter to use Twitter to cover the trial of six alleged gang members. As noted by CBS News, the reporter, Ron Sylvester, a reporter from the Wichita Eagle, routinely uses Twitter in state courts, but being allowed to do so in federal court was rare. (His tweets can be found here.) The reason is that different courts have their own rules about what sorts of devices can be used during proceedings. Many federal courtrooms ban cameras, microphones and computers.

As CBS News' technology analyst Larry Magid argues, tools like Twitter should be allowed for reporters. If what happens in most trials is public information, tools that allow faster dissemination of this information should not be prohibited.

One might ask, then what wrong with Juror Jonathan's tweets? The answer: he was a juror. Just like courts have rules limiting what reporters can do during a trial, they have rules covering what jurors can do. The Washington County Circuit Court is no different. As the court's clerk told Northwest Arkansas Morning News, jurors are typically instructed not to communicate with outside people or consult outside information about the trial.

Time will tell if this will become the Twitter mistrial, but as if we needed a reminder, Juror Johnathan stands for the lesson: Just Say No to Juror Tweeting.

In a story likely to make any parent's hair stand on end, the AP reported today that a staffer at a daycare facility in Arkansas mistakenly served windshield wiper fluid to ten children under their care.

Laura James, a pediatric pharmacologist and toxicologist at Arkansas Children's Hospital in Little Rock told the AP about what led to the accident:

"'All we know was that the individual at the day care had recently shopped and had come back to the day care with a lot of different products,' James told The Associated Press. 'This product was mistakenly grabbed and thought to be Kool-Aid and put in the refrigerator.'"

"Doctors estimate the children, ages 2 to 7, drank about an ounce of the blue fluid late Thursday afternoon before realizing it tasted wrong", said James.

Fortunately, just one of the children was still hospitalized on Friday "after blood samples showed 'measurable levels' of methanol, a highly toxic alcohol that can induce comas and cause blindness, officials said."

Day care facilities are licensed and regulated differently from state to state, but they do share certain general requirements, such as base levels of training, and staff to child ratios, which vary depending on the age of the children being watched. Generally, the younger the children, the more staffing that will be required.

As far as safety rules go, noteably, Arkansas licensing standards specifically state that:

"... 3. All medications and poisonous substances shall be kept in separately locked areas."

A spokeswoman for Arkansas' Department of Human Services told the AP that the operator of the daycare, Carolyn Bynum, already gave up her state license, and thus won't be able to care for children in the future (unless issued another license, of course). Indeed, spokeswoman Julie Munsell noted:

"She was so upset about what had occurred and she was definitely worried some of the children had been injured," Munsell said. "It was just a mistake, she says. She says it was just a horrible mistake."

Although hopefully the Arkansas story has a happy ending and all the kids have no serious or lasting ill-effects, operators of day care facilities can expose themselves to negligence lawsuits through a staffer's carelessness, even if it was just a simple mistake, as can be argued was the case in Arkansas. Even though substances like windshield wiper fluid and antifreeze are notorious for their bright, refreshing, and/or tasty-looking (antifreeze can actually be tasty) colors that can understandably be confused with kids drinks, a violation of express state licensing regulations could constitute "negligence per se", and leave a facility liable for any resulting damages.

For parents looking into day care or reviewing their existing care, a good idea as far as the subject of safety goes is to check with the operators on the procedures and training at a given facility. Operators and staff should feel comfortable discussing the topic and should also be well-informed about, and/or trained in, areas such as keeping electrical sockets guarded, keeping cleaning and medication supplies out of reach, and fire and health safety procedures. If there is any doubt or discomfort as to any or all of these areas, parents certainly are well-advised to look around for other options.

More than two years after former playmate Anna Nicole Smith's death on February 8, 2007, CNN reports that her "longtime partner" and attorney Howard K. Stern and Dr. Sandeep Kapoor were arrested on Thursday on charges "of conspiring to furnish drugs before her death in 2007." According to CNN, Smith's psychiatrist, Dr. Khristine Eroshevich, is also going to face charges and authorities said they expected her to turn herself in on Monday.

Anna Nicole Smith's name has certainly not been scarce in legal news the past couple of years with legal disputes over everything from custody of her daughter Dannielynn, to probate and estate battles and disputes over where she was to be buried, but the latest criminal charges are a twist that has surprised even some in media circles.

So what was the alleged scheme? CNN related California Attorney General Jerry Brown's description:

"The doctors and Stern devised a plan to use a fake name so that Smith could be prescribed 'thousands of pills'...

'She was obviously addicted,' Brown said. 'These doctors had a medical obligation to prescribe medicine in a professional way. Evidence will show this did not happen.'"

The complaint against charged Stern, Kapoor, and Eroshevich "with eight felonies, including conspiring to furnish controlled substances, unlawfully prescribing a controlled substance and obtaining fraudulent prescriptions from June 2004 to January 2007". The list of drugs allegedly furnished by the doctors to Stern (who then gave them to Smith) was quite lengthy and included such controlled substances as Ambien, Dilaudid, methadone, and Xanax. Anna Nicole's autopsy report had found that she had died due to an accidental overdose from a combination of drugs.

Since their arrest, Stern and Kapoor have since posted $20,000 bond and are out on bail. The question likely on most people's mind is why it took so long for charges to be filed in the case, but at this early stage police have given no indication as to the reason. A FOX News article noted that, even early on, there were certainly red flags about an excessive amount of prescriptions drugs in the case:

"according to an Associated Press report, investigators found 11 prescription medications in her hotel room the day she died. More than 600 pills — including about 450 muscle relaxers — were missing from prescriptions that were no more than five weeks old when she died, and most of the drugs were prescribed in the name of Howard K. Stern, her lawyer-turned-companion. And actually, none of them were prescribed in Smith's name."

However, any answers to the timing of the investigation and charges will have to come from police as there a variety of reasons why earlier suspicions and investigations of Eroshevich, and also of a highly suspect fax from Eroshevich to Kapoor requesting "a laundry list of drugs", did not lead immediately to charges. Although there are risks to delaying a criminal prosecution, such as vanishing defendants and witnesses or increased "memory problems", authorities usually prefer to have all their ducks in a row before bringing charges against a criminal defendant. It could be that prosecutors simply had to wait until they felt they had the strongest case to proceed with.

Recent proposals by members of Congress seek to provide tax relief to victims of far-reaching investment frauds like the one committed by Bernard L. Madoff, who pled guilty this week to carrying out a multi-billion dollar Ponzi scheme, the largest in U.S. history.

Victims of Madoff's Ponzi scheme would be able to receive refunds for taxes that they paid on "phantom" investment profits -- money they reported as earned but in fact never existed because of Madoff's deceit -- going back 13 years, under a new law proposed by Congressman Gary Ackerman (D-NY). Similar legislation, introduced last month by Congressman Kendrick B. Meek (D-FL), would allow any taxpayer bilked in a Ponzi scheme to recoup taxes they paid on "phantom" income. Finally, Bloomberg.com reports: "The Senate Finance Committee, led by Montana Democrat Max Baucus, plans a March 17 hearing on how to deal with victims of Madoff’s scheme."

After a federal investigation and subsequent indictment in which Madoff was accused of bilking thousands of investors out of billions of dollars, the former financier pled guilty in federal court on Thursday -- to 11 charges including investment adviser fraud, mail fraud, perjury, and submitting false filings to the SEC. Madoff faces life in prison, and has seen his bail revoked as he awaits sentencing in federal incarceration.

Police say former Cook county, Illinois GOP Chairman Gary Skoien admitted to having prostitutes in his children's playroom when his wife Eni found him in the early hours of last Sunday morning. Police were on the scene because Mr. Skoien called them after Eni attacked him with her fists and an electric guitar.

According to the Sun Times, Mr. Skoien's wife Eni, 5 foot 4 inches, 110 pounds and almost twenty years his younger, spent two nights in jail before being released on a $10,000 bond. Mr. Skoien obtained an order of protection prohibiting his wife from contact with him or their three children.

Mr. Skoien now disputes portions of the police report, according to the Chicago Sun times. He says he was simply speaking with friends in the playroom when his wife came down and beat him. "No money was exchanged. Nobody was naked," he told the Daily Herald. The guitar has been reported as a "toy guitar" and also as an "electric guitar." "Toy guitar understates it. I thought I was going to die," Mr. Skoien told the Daily Herald.

While much remains to be clarified in the case of the Skoiens, and the characterization of his visitors remains disputed, it raises the issue of how a parent's non-marital sexual relationships affect custody and visitation decisions.

This depends on the state, but in general, nonmarital sexual relationships are not supposed to factor into custodial decisions, unless the relationship has harmed or is likely to harm the child. If the sexual relationship(s) has caused stress or embarrassment for the child, then it would be considered a factor against that parent. Courts in a few states tend to automatically assume nonmarital sexual relationships are harmful to children.

Of course, domestic violence, toward a spouse or child, would also factor largely in a custody decision.

Consumer complaints against airlines are frequently in the news these days, and they come in a wide variety of forms. Reports about frequent and lengthy delays, or worse, travelers getting stranded at airports have become fairly common. But what if you got to your destination, and, after waiting at the carousel long enough to memorize all the types and colors of unclaimed suitcases, you've come to the awful realization that your luggage is "gone"? You're now stuck at wherever your destination might be (hopefully, it was a return flight), are likely steaming mad, and might not be getting a whole lot of help from the airline.

The AP reports that Yale student Jesse Maiman at least got his luggage, but it was missing a key article, Maiman's prized Xbox "with a specialized hard drive". This occurred when Maiman flew from New Haven, Connecticutt, to Cincinnati in December and after he got an "unconscionable run-around" from US Airways. He's now looking for some serious payback and is suing the airline for $1 million.

US Airways, however, does not appear to be overly concerned, according to the story:

"A US Airways spokeswoman said the airline was unaware of the suit but noted that the government limits liability for lost luggage to $3,300 per bag."

So what is the law on lost baggage and/or stolen articles therein? And what if you just happen to be inordinately and sentimentally attached to a gaming system or other item stashed in your luggage?

The answer is that US Airways might have pretty good reason not to be overly concerned, at least not legally. Domestic travelers are covered under federal law which does, as noted by US Airways, limit liability for lost luggage to $3300 (this amount changes fairly regularly to account for inflation). International travelers face even more restrictions on their recovery for lost luggage under international law. Also, any personal or emotional attachment to your checked-in goods (yes, even your gaming console), likely won't affect the extent of the airline's liability.

Adding to the above noted difficulties, pretty much all airlines these days try to exclude or limit their liability by contract with regard to various types of items in luggage, such as jewelry and electronics. However, whether or not such restrictions are enforceable actually varies depending on the jurisdiction. Travelers also should carefully review any additional travel insurance they purchase to make sure it's going to meet their needs. Such insurance often also has limitations and exclusions that the traveler should take into consideration.

If all of this sounds entirely daunting, one bit of good news in that sometimes homeowners insurance can cover items lost by an airline. Also, some credit cards also offer varying protections to travelers for tickets purchased using the credit card. However, the big takeaway from the above information probably would be that the average traveler is best advised not to travel with stuff they can't live without or that cannot be replaced. 

U.S. Senator Charles E. Schumer is asking for a federal inquiry into a growing number of reports that debt collectors are attempting to “shake down” surviving spouses and children of deceased credit card debtors, even when those family members are under no legal obligation to pay off the debt of their deceased loved ones.

The Democratic Senator from New York sent a letter to the Federal Trade Commission (FTC) this week, citing several recent media reports of companies that “call surviving relatives, often shortly after the death of a loved one, to coax or cajole them into making payments on the deceased relative’s credit card.” Senator Schumer’s letter asks the FTC to investigate these allegations, and requests an inventory of how many debt collectors may be engaged in such unlawful practices, and which credit card companies may be contracting with the offending collection agencies. Senator Schumer calls the practice “distasteful and unethical,” and declares that these collectors may also be violating a federal law called the Fair Debt Collection Practices Act.

The Fair Debt Collection Practices Act lays out what creditors and collection agencies can and cannot do in attempting to collect money owed. Typically, a debt collector is not permitted to communicate with family members or other third parties linked to a debtor, unless the third party is somehow legally obligated to pay the debt in question, or is acting as executor or administrator of the deceased debtor's estate.

Baystate Medical Center in Springfield, Massachusetts has stated that one of its doctors, Dr. Scott S. Reuben, faked data used in 21 studies on painkillers including Vioxx and Celebrex. Dr. Reuben's work has been important in the field of pain management and some anesthesiologists must now reconsider certain practices adopted on the basis of his falsified work.

The New York Times reports that the 21 (identified) studies falsified by Dr. Reuben included studies on Pfizer's painkillers Bextra, Celebrex and Lyrica, Merck & Co.'s painkiller Vioxx, and Wyeth's antidepressant Effexor XR. Bextra and Vioxx have since been withdrawn from the market. The hospital has stripped Dr. Reuben of his research and educational duties.

Dr. Reuben's work reportedly revolutionized pain relief for patients undergoing orthroscopic surgery. As Scientific American reports, Reuben's work, beginning in 2000, tried to convince surgeons to shift from older anti-inflammatory drugs to then-new proprietary COX2 inhibitors like as Vioxx, Celebrex, and Bextra. When some expressed fear that these drugs could inhibit bone healing, Dr. Reuben reportedly recruited co-authors for falsified studies to assuage such fears.

Evan Ekman was one such reportedly unwitting co-author, according to Scientific American. Dr. Ekman became suspicious later, however, when Reuben asked him to review another study but ceased contact when asked for the name of the surgeon on the study. Displaying perhaps a touch too much chutzpah, Dr. Reuben forged ahead and forged Ekman's signature as a co-author on the new study.

By 2004, Vioxx and Bextra had been yanked from the shelves over increased risk of heart attacks. As reported by Scientific American, despite another study indicating that the last available COX2 inhibitor, Pfizer's Celebrex, posed similar risks, Reuben continued to trumpet the benefits and downplay the risks of prescribing Celebrex. Dr. Reuben was a member of Pfizer's speakers bureau and received five separate research grants from Pfizer. According to Scientific American, Paul White, an editor of the journal Anesthesia & Analgesia, estimates that Reuben's discredited studies "led to the sale of billions of dollars worth of the potentially dangerous drugs known as COX2 inhibitors, Pfizer's Celebrex (celecoxib) and Merck's Vioxx (rofecoxib), for applications whose therapeutic benefits are now in question."

Abnormalities in the research around Vioxx are not new. As the New York Times reported in April, documents released in Vioxx lawsuits and an article published in the Journal of the American Medical Association argue that Merck employees ghost wrote many studies on Vioxx, with academic doctors signing on as lead authors without indicating what if any work they did on the studies. This is separate from the internal documents reported by the New York Times to show Merck scientists' fear regarding the safety of Vioxx years before it was pulled in 2004.

As for Dr. Reuben, in addition to potentially harming patients and pumping up the sales of dangerous drugs, he also threw a wrench into the state of knowledge in post-operative pain care. He was a prolific "researcher," and his work was part of a foundation for follow-on research which has now been undercut. Anesthesia & Analgesia's editor in chief, Steve Shafer, told the NYT that Reuben's deception "sets back our knowledge in the field tremendously."

Through his lawyer, Dr. Reuben has expressed deep regret for what transpired. No one else, including co-authors or anyone from Pfizer, has claimed any responsibility. According to Scientific American, editors at Anesthesia & Analgesia say the blame goes much further, noting that research funding often comes with subtle pressure to find favorable results. They also admit they should have seen red flags in Dr. Rueben consistently findings results favorable to the drugs he studied.

Casino magnate Steve Wynn and his wife Elaine are heading toward divorce, according to an AP report. Michael Sommermeyer, a Clark County court spokesman, told the AP that "divorce papers were filed March 5 and sealed by a judge the same day." The sealing of the case would keep the case out of the private eye, should it remain sealed throughout the proceedings.

Steven Wynn, 67, and Elaine, 66, were college sweethearts who originally married in 1963, but these aren't the first rough marital waters the couple have sailed considering the Wynns got a divorce in 1986 and remarried five years later.

The pair's divorce could raise a host of thorny issues with regards to marital assets and the Las Vegas casino company, Wynn Resorts, Ltd. Most people are aware that Steve Wynn is the chief executive of the company, which the AP noted "reported $210.2 million in net income for 2008." What they might not be aware of is that Elaine Wynn also happens to be a director on the company's board.

The company, however, is keeping mum for the most part and "told the AP that the company does not comment on the Wynns' personal matters", and "Wynn Resorts spokeswoman Jennifer Dunne said only that Elaine Wynn is an 'active board member' of the company." Aside from her status as a board member, however, the AP noted that she is also a significant shareholder:

"According to data compiled from Securities and Exchange Commission documents by 10K-Wizard, Steve and Elaine Wynn each own more than 24 million shares in Wynn Resorts ... each worth more than $468 million at Tuesday's market close..."

As a result, "[i]t was not clear how a split could potentially affect the company, which is focused on opening the $700 million Encore Macau casino in 2010, along with operating its existing resorts amid a difficult economic climate."

Interestingly, a January 2009 article in the American Bar Association's ABA Journal monthly publication noted how the recession and, particularly, the shaky financial markets (as of Tuesday's close, Wynn Resorts shares are nearly 84 percent off their 52-week high) are prompting many high net worth couples to split or to seek modifications of prior divorce settlements. The author noted how the head of one law firm's family and matrimonial practice has been advising clients that, because the value of many individuals' and couples' assets is so much lower these days, now would be the time to seek a divorce or a modification to a divorce settlement.

On the other hand, any such speculation as to the timing or motivation for the divorce may be entirely fruitless. The AP piece noted a far more commonplace possible trigger for the Wynns' divorce, as "the Wynns have been dogged since January by tabloid reports that Steve Wynn had fallen for another woman."

EPA Proposes National Greenhouse Gas Emission Registry

Power plants, factories, and other businesses that produce high levels of greenhouse gases like carbon dioxide would be required to track and report their emissions, under a new registry system proposed Tuesday by the U.S. Environmental Protection Agency (EPA).

"Greenhouse” gases trap heat in Earth’s atmosphere and can contribute to global warming. The majority of greenhouse gas emissions occur through the burning of fossil fuels by manufacturing facilities, refineries, and utility companies. According to an EPA News Release announcing the greenhouse gas emissions registry proposal, “Approximately 13,000 facilities, accounting for about 85 percent to 90 percent of greenhouse gases emitted in the United States, would be covered under the proposal.” These facilities include fossil fuel and chemical suppliers, vehicle manufacturers, and any company with an annual greenhouse gas emission of 25,000 metric tons (equal to the annual greenhouse gas emissions from about 4,500 cars). According to the EPA, "The vast majority of small businesses would not be required to report their emissions because their emissions fall well below the threshold."

A greenhouse gas emissions reporting system could impact a company's attractiveness to potential investors, CNNMoney.com reports: "Some groups say that the Securities Exchange Commission should now require companies to disclose to investors the liability that carbon dioxide regulation represents to their earnings - as the agency does with lawsuits or other factors that could have a substantial impact on firms' bottom lines - and a registry strengthens their argument."

Anyone concerned about their finances during the ongoing recession might want to take a quick refresher on insurance, and then reviewing their own policies and coverage anew, according to a poll conducted by the National Association of Insurance Commissioners (NAIC). The NAIC is an organization of states' chief insurance regulatory officials that "serves the needs of consumers and the industry, with an overriding objective of supporting state insurance regulators as they protect consumers and maintain the financial stability of the insurance marketplace."

The organization noted in a news release that the displayed lack of knowledge by a representative segment of quiz takers is of particular concern during these tough economic times, considering increasing unemployment rates and decreasing home values. Americans certainly didn't lack in confidence heading into the survey, as "nearly 60 percent said they feel 'very confident' when making insurance decisions overall". Unfortunately, the same self-assuredness didn't translate into results because "on average, Americans flunked the test with only a 40 percent score."

The AP reported on the results of the quiz, highlighting a few findings, such as:

  • Only 41 percent knew that auto insurance does not automatically cover a rental car.
  • Less than half knew about the cost of coverage in the event of job loss and choose COBRA (Consolidated Budget Reconciliation Act) insurance to continue their health benefits
  • 58 percent were aware that health insurance will not cover their living expenses if they become disabled and cannot perform their job.
  • Just 14 percent knew that the amount of life insurance typically recommended for individuals is five to seven times your annual salary.

Although the quiz just touched on auto insurance coverage, an interesting series of question(s) might have been whether individuals are aware of their state's "minimum" required auto insurance, what it would cover, and whether they know about uninsured and underinsured motorist coverage (UI/UIM). In many states, often people purchase only minimal "liability" coverage, only to find out after they are injured in an accident that their insurance only covers their liability to the other party. If an individual is seriously injured in an accident with an underinsured (or, of course, uninsured) motorist, the repercussions on their employment and finances can be significant. UI/UIM coverage can be used to fill the gap in between insufficient or non-existent liability coverage, where necessary.

Finally, the NAIC noted 4 tips for consumers in its release, which can be boiled down to emphasizing the importance of consumers staying informed and/or getting educated about insurance, and reviewing the policies they already have. As noted by the NAIC:

"With rising joblessness and falling home prices, Americans need to make sure they understand what their insurance policies cover. By making careful, informed decisions about their insurance, consumers can save money and ensure long-term protection for themselves and their loved ones."

Below are some links for consumers that would like to take the quiz or find more information on some of the insurance subjects discussed.

Residents at a Corpus Christi, Texas school for the disabled were forced by school employees to participate in "fight club" style battles. As Texas fights to reign in neglect and abuse in its institutions for the disabled, other states including North Carolina have begun to enforce laws that regulate fighting events beyond the traditional boxing.

The Dallas Morning News reports that employees of the Corpus Christi State School filmed fights which they prompted between profoundly disabled residents over a span from 2007 into 2008. Corpus Christi Police Capt. Tim Wilson stated that he had "heard of isolated incidents before, but what's most appalling is that it's obvious this is organized." As the Dallas Morning News notes, this comes at a time when Texas has already come under heat from the Department of Justice regarding systemic abuse and widespread civil rights abuses at its schools for the disabled.

On the same day that officials acknowledged evidence of the fights, the Texas Senate unanimously passed an emergency measure that will establish an ombudsman to audit and investigate injuries and deaths in the state's 13 institutions for the disabled. According to the Dallas Morning News, the measure also calls for security cameras in all the schools, as well as fingerprinting, background checks, and random drug tests for all employees.

Outside the realm of disabled individuals under state care, organized fighting events continue to test the boundaries of state criminal laws, sporting regulations and accepted entertainment.
 
Last week, the Burlington Times News reported that a man in Melbane, North Carolina became the first to be charged with violating North Carolina's law regulating mixed martial arts fighting events. North Carolina added kickboxing, mixed martial arts matches and toughman events to its regulation of boxing events. Lannie Wells Jones Jr. has been charged with running unregulated Ultimate Fighting Championship-style fights involving teens at his tattoo parlor, the Torture Chamber.

Ultimate Fighting Championship (UFC), the widely promoted mixed martial arts fights, seen by some as inspiring home made blood sport, itself still tests legal boundaries in many states. As the Nashville Business Journal reported, Tennessee recently became the 37th state to legalize UFC events.

In other places, including the state of New York, as reported by New York Magazine, UFC remains illegal. In Quebec, where UFC events have been staged in the past, the Toronto Sun recently reported that organizers of a sold out April UFC event are scrambling for a fix after Quebec's provincial government made clear that local regulations prohibit many moves allowed by UFC rules, such as knee and elbow strikes and attacking an opponent who is down.


 

Lawyer: Madoff to Plead Guilty; May Face Life in Prison

Bernard L. Madoff, the former financier accused of bilking thousands of would-be investors out of billions of dollars, is expected to enter a guilty plea in federal court in Manhattan later this week, and the deal could carry a sentence of life in prison, according to multiple news sources.

Revelation of Madoff's intent to plead guilty came from Madoff defense attorney Ira Sorkin, during proceedings before U.S. District Court Judge Denny Chin on Tuesday. According to Bloomberg.com, Madoff "will admit on March 12 that he directed a fraud that totaled as much as $64.8 billion, his lawyer and prosecutors said today in Manhattan federal court. The government will seek forfeiture from Madoff of as much as $170 billion. Madoff, free on $10 million bail, faces life imprisonment." Madoff's investment scam is being billed as the largest Ponzi scheme in U.S. history. Read Bernard Madoff's Criminal Charges Prior to the Plea Agreement

According to Reuters, Madoff "was charged in court papers with securities fraud, mail fraud, wire fraud, three counts of money laundering, false statements and perjury among other charges," and "could face up to 150 years in prison under federal sentencing guidelines."

Maytag Corp. today issued a voluntary recall of over 1.6 million refrigerators sold nationwide that can potentially pose a fire hazard, and have actually resulted in fires and property damage.

As noted by Maytag in its recall notice, the specific hazard is that "[a]n electrical failure in the relay, the component that turns on the refrigerator's compressor, can cause overheating and pose a serious fire hazard."

The recall covers specific "Maytag®, Jenn-Air®, Amana®, Admiral®, Magic Chef®, Performa by Maytag® and Crosley® brand side by side and top freezer refrigerators. The affected refrigerators were manufactured in black, bisque, white and stainless steel." However, refrigerators with freezers on the bottom are not included in the recall.

If you have one of the above listed models, Maytag has a model/serial diagram that can help consumers determine whether their particular fridge is on recall by checking the model and serial numbers on their refrigerator at home.

At this time, Maytag indicates it has received 41 reports of the relay actually igniting, with 16 reports of resulting property damage from smoke or fire. The last time Maytag indicates it had recalls was in 2007 when the company recalled specific front-loading washers and dishwasher models.

If you own a Maytag refrigerator, Maytag suggests that consumers immediately contact the company toll-free anytime at (866) 533-9817 and they will confirm whether the refrigerator is included in the recall, and, if so, send someone out for an in-home repair. Maytag indicates that consumers should not return their units to retailers.

A health care study published Monday finds that patients who discuss their end-of-life care options with their physicians, and then make their wishes known, incur significantly lower health care costs in the final weeks of their lives.

The Archives of Internal Medicine study released Monday, Health Care Costs in the Last Week of Life: Associations with End-of-Life Conversations, compared the health care costs of 603 terminal cancer patients, based on whether or not they had discussed end-of-life care with their doctors. The report concludes that "Patients with advanced cancer who reported having end of life conversations with physicians had significantly lower health care costs in their final week of life. Higher costs were associated with worse quality of death."

Reuters reports that patients who have end-of-life care discussions with their doctors tend to choose cheaper "palliative" care options either at home or in a hospice, "to relieve suffering rather than to halt progression or cure the disease." Palliative care doesn't typically include "costly treatments like emergency resuscitation, ventilators to breathe for them and movement to a hospital's intensive care unit," according to Reuters.

Terry Joe Sedlacek, 27, has been charged with first degree murder for the fatal shooting of pastor Fred Winters of Maryville, Illinois during services this past Sunday. He has also been charged with aggravated assault involving the altercation and alleged stabbings of parishioners that occurred after the shooting.

Sedlacek himself was seriously injured in the incident and remains hospitalized, and his motive (if any) remains unclear. However, CBS reported today that Sedlacek may have been suffering from mental illness stemming from Lyme disease.

What was, at the time, an informational health piece by the St. Louis Dispatch in August of 2008 now gives some background and insight into the sad story of Terry Sedlacek, who led a normal life until he was apparently bitten by a tick in 1998 or 1999. The story related how, from that point on, things deteriorated badly for Sedlacek who became confused and was treated for drugs for mental illness, until he was actually accurately diagnosed with the tick-borne diseases of ehrlichiosis and Lyme disease.

The piece described Sedlacek's condition at that time of writing (Aug. 2009):

"These days, Sedlacek, now 26 and living in Troy, Ill., with Abernathy, has difficulty speaking. He's got lesions on his brain. He's taking several drugs, including anti-seizure medication."

Sedlacek was also undergoing further treatment then to try and help him recover, but regardless, it's not clear at this stage whether the disease even contributed to this incident. FOX News reported on the possibility that Lyme disease could trigger psychosis, stating:

"'Chronic Lyme disease can be associated with seizures, depression, anxiety and even psychosis has been reported,' said Dr. Marc Siegel, an internist and FOX News Channel contributor.

'It's possible, but the problem is, something being reported doesn't always mean it's the cause. For example, someone may have psychosis or seizures -- but Lyme disease may not be the cause -- so you have to be really careful.'"

If psychosis were suspected, it's possible that Sedlacek's family could have had him committed for treatment of the mental illness, but the news stories do not appear to indicate that was the case, as Sedlacek was being treated for his illness.

Aside from such drastic legal measures to avoid what was, perhaps in all likelihood, an unforeseeable incident, it might be that the best chance of avoiding the tragic results of a simple tick bite might be via early detection and treatment of the disease. Karen Yates, an official with the Missouri Department of Health and Human Services told the St. Louis Dispatch:

The "vast majority" of people who contract Lyme disease get a bull's-eye rash around the bite, Yates said. If caught at that stage, Lyme disease can usually be treated successfully with a round of antibiotics.

Sadly, as Sedlacek's mother Ruth Abernathy said back in August, "'[w]e went through it for nine years,' she said, 'and it can be cured in 30 days.'" Below are some informational links on the story, as well as Lyme disease prevention and treatment.

Utah legislators and its Governor announced a deal which may bring sweeping changes to the state's unique liquor laws. Utah may do away with its "private club" requirement, allowing drinking in bars without membership for those of age, in exchange for ID scanning at bars and tougher DUI penalties.

Currently, to be served alcohol in Utah, one must be a member (or guest of a member) of a private club. The Salt Lake Tribune reports that only West Virginia has a similar law, and West Virginia's is not enforced.

According to the Tribune, under a bill supported by Governor Jon Huntsman Jr., there would be no more requirement of private club membership to drink in a bar, however, bar patrons' IDs will be scanned and DUI offenders would face stiffer penalties.

As the Tribune reports, under the plan, the IDs of all who appear under 35 years old would be scanned when they entered a bar. Data regarding their entrance would be kept on hand for one week. The stated purpose of the ID data tracking is for drunk driving accidents. Law enforcement would be able to use the ID records for prosecution, and also to potentially hold bars responsible if they served intoxicated patrons.

The steepened penalties for drunk driving would include the forfeiture of vehicles by repeat offenders, loss of license for underage drunk drivers, and increased bar-owner liability for drunk patrons who become involved in accidents.

At issue is also what has been dubbed the "Zion Curtain." This is the partition currently required in Utah restaurants that serve alcohol. Servers must walk around the Zion Curtain in order to carry drinks to patrons. The bill supported by Governor Huntsman would allow servers to pass drinks to patrons directly over the bar. New restaurants must have a separate area, away from the eyes of children, for mixing drinks, while existing restaurants would be grandfathered in.

The new laws would take effect July 1 for bars and May 12 for restaurants. The Tribune quotes Governor Huntsman as saying, "[n]obody thought this was doable, but, through it all, I thought we were going to get to an [agreeable] end point." Indeed, though it appears a passable deal has been reached, just weeks ago, the Salt Lake Tribune reported that a bill was moving through Utah's Senate to raise the Zion Curtain. That bill sought to mandate that restaurants serving alcohol prepare all drinks in a back room or behind a ten footwall.

However, lest you worry that drinking become too easy in Utah, Forbes reports that Utah bar owners fear inclusion of another provision in the new laws. They fear a proposed redefinition of what it means to be intoxicated and decreased evidentiary requirements to hold bars and restaurants liable for serving intoxicated patrons.


 

The Supreme Court today ruled that it will not hear the case brought by Nancy Braus, the mother of a student injured in the Nov. 18, 1999 collapse of a ceremonial log pile that killed 12 people and injured 27 at Texas A&M University. She had sued school officials and others, claiming loss of consortium based on the injuries sustained by her son Dominic Braus in the collapse.

The AP gave some background to the case, noting that:

"The 90-year-old bonfire tradition was suspended after the 1999 collapse of the 59-foot-high, wedding cake-like stack of more than 5,000 logs. An A&M commission blamed the collapse on flawed construction techniques and the lack of adequate supervision of students assembling the stack."

However, the court below had rejected Nancy Braus' action based on a 2003 Texas Supreme Court decision which found that a "parent does not have a claim which can be asserted against those alleged responsible for the injuries to an adult child", or, in legal terms a "filial loss of consortium" claim.

Loss of consortium claims are often brought in cases involving the loss or severe injury of a family member and are based on the loss of love, affection, protection, emotional support, services, companionship, care and society that can occur when a family member is injured. Although loss of consortium claims often involve the death or severe injury of a spouse, consortium is defined not only as "the right of one spouse to the company, affection, and assistance of and to sexual relations with the other," but also as, "the right of a parent or child to the company, affection, and assistance of the other."

However, states vary on whether, and to what extent, they allow the latter "filial consortium" claims involving parents and their children. In cases involving the wrongful death of a child, most states allow the parents to recover consortium damages. On the other hand, if a child is only injured, most states do not allow recovery of such damages. Still, a number of states such as Florida and Massachusetts, do allow parents to recover on consortium claims for injuries to a child.

Today's Supreme Court order simply refused to hear Nancy Braus' case, and thus, it remains in the hands of the states to determine how they deal with filial loss of consortium claims, one way or the other.

Top Court Won't Hear NYC Suit Against Gun Industry

The U.S. Supreme Court on Monday turned away the City of New York's latest attempts at holding the firearms industry legally responsible for violence caused by the marketing of handguns that end up being sold and used unlawfully.

The lawsuits, originally filed in 2000 against gun makers like Beretta, Smith & Wesson, and Colt, sought to hold the companies liable under a New York "public nuisance" law. The City of New York basically alleged that the gun makers created a dangerous condition that affected the safety of a large number of New Yorkers, by letting handguns fall into the wrong hands through illegal and private sales. A federal appeals court threw out the claims, ruling that a 2005 law shields gun makers from such lawsuits, and the U.S. Supreme Court on Monday declined to disturb that decision.

According to the Associated Press, the lawsuit claimed "manufacturers let handguns reach illegal markets at gun shows in which non-licensed people can sell to other private citizens; through private sales in which background checks are not required; by oversupplying markets where gun regulations are lax, and by having poor overall security."

Retired New York Giant player Michael Strahan may have taken any "spy" defense employed during his football career to a whole new level after he tracked his former girlfriend Nicole Murphy (who also happens to be the ex-wife of Eddie Murphy) using a spy gadget of some sort.

Apparently, Strahan may have been concerned (perhaps with good reason) about Nicole Murphy's potential interest in recording exec Demetrius Spencer.

It looks like Strahan is not new to the world of secret surveillance, however, as the New York Post indicated:

"During his nasty 2006 divorce trial, Strahan's ex-wife, Jean, accused the hulking defensive lineman of using high-tech spyware to tap her phone at their New Jersey mansion. She also revealed at the trial that he'd installed a secret video system to record her sister undressing."

When it comes to affairs of the heart, the use of bugs, cameras, or tracking devices is certainly not uncommon, even in highly unusual places. The question of their legality, however, is another matter. It's unclear what type of device was allegedly being used by Strahan, but apparently it did provide "up-to-the-minute location status", so it was presumably something at least similar to a GPS. So are such devices legal to install, and if so, by whom and where?

As is often the case, laws are going to vary from state to state on the legality of planting tracking devices on cars. For example, employers have sometimes been known to use GPS devices on company cars to ensure that the cars aren't being used for non-business purposes. However, many states also have statutes prohibiting employers from taking action against their employees for legal, off-duty conduct, and furthermore, state privacy statutes can also come into play.

Private individuals looking to do some amateur sleuthing via GPS should similarly be concerned about breaking their state's privacy laws, even if it is their own car they are tracking. If it's not their own car, they are almost certainly going be opening themselves up to legal trouble. Rental car companies have come under scrutiny in the past for using GPS devices on their own vehicles, and then charging their customers for information provided by the GPS, such as going too fast and "excessive wear and tear".

The bottom line is that anyone considering the use of GPS or a similar track technology should not take that action without consulting with local counsel regarding the most up to date laws in their jurisdiction.

Thousands of people across the U.S. are entitled to a piece of about $1.3 billion in tax refunds from 2005, but since those taxpayers have yet to file their taxes from that year, the windfalls remain uncollected, the Internal Revenue Service (IRS) announced this week. And anyone entitled to a refund had better act fast, because 2005 returns must be filed (and refunds claimed) by this year's April 15 filing deadline, or the money will be lost.

In a Press Release issued Tuesday, IRS Commissioner Doug Shulman declared: "Especially in these tough economic times, people should not lose out on money that is rightfully theirs . . . People should check their records. They may be leaving money on the table, including valuable tax credits that can mean even more money in their pockets."

Some people may not have filed a return in 2005 because their income level didn't require them to file, even though taxes were withheld by their employers, so a refund may be waiting for them. In any case, the IRS reminds taxpayers that there is no penalty for filing a late return that qualifies for a refund, but 2005 returns must be filed by April 15 in order for taxpayers to collect their part of the $1.3 billion in unclaimed refunds from 2005.

As if riding a motorcycle by itself weren't hazardous enough these days, TMZ and news agencies report that former NFL'er Brian "The Boz" Bosworth was arrested for DUI last night while riding his Harley. If you don't remember Brian Bosworth from the NFL, it's probably because his NFL career was pretty short (1987-89) and perhaps not terribly successful, although to be fair, many would say he had a phenomenal collegiate career. If his name still rings a bell, but not for football reasons, maybe it was his transition to an acting career that caught your attention.

At any rate, it looks like Bosworth wasn't pulled over for driving erratically or something of that sort, but instead it appears to have simply been for a lack of a license plate on his Harley. Police thereafter smelled alcohol on his breath, which led to a failed breathalyzer and the arrest.

For anyone who harbored any doubts, yes, you can still get a DUI for riding a motorcycle, even though, in all likelihood, the greatest risk posed is to yourself. In some states you can get a DUI for driving vehicles such as snowmobiles, ATV's, golf carts, or even electric wheelchairs! Also, police don't have to pull you over for a DUI-related reason in order for them end up arresting you for that offense. Police can pull someone over based on a reasonable suspicion, supported by articulable facts, that they've committed an offense. In Bosworth's case, it would appear that it was for not having a license on his Hog.

Once police have validly pulled someone over, they can then be detained for a reasonable time in order to check their documentation, issue a citation, etc., but during the course of a traffic stop, as apparently happened in Bosworth's case, police can end up detecting alcohol on a person's breath or in some other way, which can lead police to ask for a Breathalyzer test, and subsequently, to an arrest for DUI.

The AP and CNN report that Chris Brown is expected to be arraigned Thursday afternoon on charges of assault likely to cause great bodily injury and making criminal threats arising from an argument he had with his girlfriend Rihanna.

Although Thursday's felony complaint identifies the victim only as "Robyn F.", sources close to the pair told CNN that the victim was Rihanna, whose real name is Robyn Rihanna Fenty. Chris Brown's attorney, Mark Geragos, had no comment as-of-yet on the filing, but previously, Brown had put out a statement saying he was "sorry and saddened" about the incident. The AP noted that "Rihanna also later issued a statement, saying she wouldn't comment on the alleged beating at the request of authorities" and thanking fans for their support.

A sworn statement of an officer in the case indicates that the incident arose after Rihanna discovered texts on Brown's cell phone "from a woman who Brown had a previous sexual relationship with." The argument then escalated as detailed literally in horrifying blow-by-blow detail in the CNN report, noteably including claims of punches, head locks, a thrown cell phone, and eye gouges.

In news that may have been a surprise to some, later reports have pointed at a possible reconciliation between the two and CNN discussed the difficult, yet not-uncommon circumstances surrounding domestic violence victims who end up getting back together with the alleged perpetrators. One counselor noted one possible reason:

"Abuse victims will 'leave out of either fear, anger or resentment,' he said. 'But then, after the fear, anger or resentment begins to subside, they feel guilt, shame, anxiety, and that takes them back.'"

Regardless of any reconciliation between the two, Brown will nevertheless face the criminal justice system for this incident. Indeed, even if everything has been smoothed over between the two of them, Rihanna may end up being faced with testifying against Brown in the criminal proceedings. This brings up a problem commonly faced by authorities and prosecutors in domestic violence cases where victims can and do often end up reconciled, manipulated, or intimidated (physically, phsychologically, or even financially). If that happens, authorities are left either without their best evidence, or perhaps worse, a witness on the stand who has become uncooperative or has changed their story.

So what happens in such circumstances? Prosecutors are faced with an unsavory choice of using their victim-witnesses' own statements or other evidence to "impeach" (or contradict) them in front of the jury, or simply not using the witness in the first place. For this reason, police sometimes ensure they take extra measures such as taped statements, photographs, and securing on-the-scene police officer testimony, so as to give the case the best chance to proceed even in such a "victimless prosecution."

Most people have used an online consumer review site at some point, whether it be to check out what others thought about the latest gadget, a new restaurant down the street, or obtaining the services of a professional, such as an optometrist, dentist, lawyer, doctor, plumber, etc.. The proliferation of review sites online has made it pretty easy to find somebody's take on just about any consumer product or service need in existence.

However, recently there has been some backlash at various review sites by the businesses and/or professionals being reviewed. The AP reports that some doctors have even taken the unusual step of getting their patients to sign waivers preventing them from posting negative comments online.

In favor of limiting online reviews, the AP noted one argument that:

"'Consumers and patients are hungry for good information' about doctors, but Internet reviews provide just the opposite, contends Dr. Jeffrey Segal, a North Carolina neurosurgeon who has made a business of helping doctors monitor and prevent online criticism."

Segal's North Carolina company, Medical Justice, provides doctors with a standardized waiver agreement to present to patients. Those patients who decide to sign agree not to post online comments about the doctor, "his expertise and/or treatment", whereas those who decline can be advised to seek medical services elsewhere.

Not surprisingly, operators of review sites tend to view the matter quite a bit differently, as exemplified by statements made by John Swapceinski, co-founder of RateMDs.com:

"They're basically forcing the patients to choose between health care and their First Amendment rights, and I really find that repulsive," Swapceinski said.

He said he's planning to post a "Wall of Shame" listing names of doctors who use patient waivers.

The fact of the matter is, however, that businesses or individuals suing consumer review Web sites face an uphill battle. Web sites are protected under federal law against being sued for publishing third-party content. Specifically, Section 230 of the Communications Decency Act provides that: "No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." This doesn't provide sites with blanket immunity for whatever gets thrown up on them, of course, but when it comes to a third-party individual's own, honestly expressed opinions online, it's pretty close.

Because the intent of Congress in passing the law was "to promote the continued development of the Internet and other interactive computer services and other interactive media," and "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation", lawsuits against the operators of review sites often don't get very far and can just be a drain on a business's financial resources.

Lastly, if a review site's users are anonymous, as is the case with RateMDs.com, this can make it an even tougher task to try and pursue legal action for a negative online review, even if the professional/business has some kind of waiver agreement (RateMD.com has refused to take any reviews down based on waivers). However, what seems clear at this point in the development of the Web, is that a growing number of people are starting to ask whether the value being placed on free speech online should begin to give way to some push toward online responsibility. On the other hand, hopefully, we won't have to start signing waivers before getting served our dinner out!

California Supreme Court Hearing Prop 8 Cases Today

The California Supreme Court is hearing arguments today on the legality of Proposition 8, beginning at 9:00 a.m. You can watch a live feed of today's proceedings via the California Channel, as California's top court decides the future of same-sex marriage in the nation's most populous state.

The California Supreme Court is considering a number of legal isssues related to Proposition 8, which changed the state's Constitution to limit the definition of marriage to a union between a man and a woman. Most importantly, the court will decide whether Proposition 8 amounted to a "revision" of the California Constitution (as opposed to a mere "amendment"). A revision to the Constitution would require a higher procedural threshhold for passage than the simple majority vote through which Prop 8 passed on a statewide ballot last November. So, if the state's top court decides that Prop 8 amounted to a "revision" to the state Consitution, Prop 8 would be declared invalid. The other key question before the court is the legal effect of Prop 8 on same-sex marriages that were performed prior to the measure’s adoption, should the ban be upheld.

The Los Angeles Times reports that much can be gleaned from the interplay between judges and attorneys during oral arguments, and many eyes and ears will be on the California Supreme Court's "swing" vote: "The justices’ questions to lawyers often reveal how the court is leaning. Legal analysts will be carefully watching Chief Justice Ronald M. George, whose vote often determines whether the conservative or more liberal wing of the court prevails."

It is customary for the California Supreme Court to issue a ruling within 90 days of oral arguments, so a decision on Prop 8 and the future of same-sex marriage in California should come down before mid-June.

Lawmakers in New York's Suffolk County passed what would be the first ban on bisphenol-A (BPA) from baby bottles in the US. While Canada has have a similar ban for over a year, and a growing number of US localities may follow, up to now a heavily criticized FDA has found no problem with current levels of BPA exposure.

According to the National Toxicology Program (NTP), BPA is a chemical produced in large quantities for polycarbonate plastics and epoxy resins. Polycarbonate plastics are used in products including baby bottles, cds and medical devices. Epoxy resins are used to line cans, bottle tops and water supply pipes.

What's the concern? BPA leaches from products containing it into people. As the NTP notes, according to a 2003-2004 study by the Center for Disease Control, 93% of urine samples from people six years and older contained detectable levels of BPA. According to Newsday, the harms feared by BPA opponents include increased risk of heart disease, diabetes and stunted growth, along with certain cancers and potential interferences with cancer treatments. The NTP concluded that there is "some concern for effects on the brain, behavior, and prostate gland in fetuses, infants, and children at current human exposures to bisphenol A."

Yesterday, as Newsday reports, legislators in Suffolk County New York voted to ban the sale of baby bottles and sippy cups intended for children 3 or younger containing BPA. Should it be enacted, this would reportedly make Suffolk County the first place in the US with such a BPA ban. The growing list of states considering a BPA ban from children's products includes Washington, Oregon, California, Connecticut and Minnesota. As Newsday reports, many retailers have already begun to move away from baby products containing BPA.

At the federal level, controversy has plagued the FDA's response to BPA concerns. Last August, the FDA released a Draft Assessment of BPA, finding an "adequate margin of safety" in then-current levels of BPA exposure. In October, as USA Today reported, the FDA's findings were rebuked. An FDA advisory board of outside experts unanimously concluded that the FDA was wrong to base its findings solely on studies funded by the chemical industry. The advisory board also admonished the FDA for excluding studies suggesting a harm to children from BPA levels 10 times lower than that allowed by the FDA.

In December, the Washington Post reported that the FDA refused to amend its position on BPA, but would continue to study it. According to the Milwaukee Journal Sentinel, Rep. Edward Markey and Sen. Charles Schumer will reintroduce federal legislation to ban BPA from children's products.

As Suffolk County illustrated, localities might not wait for the FDA or Congress to act. As praised in a Chicago Tribune editorial, two Chicago city councilmen recently proposed a resolution to aggressively pursue a BPA ban if the FDA doesn't act by April 30.

According to WPBF-TV, Latreasa Goodman of Florida was cited over the past weekend for misusing the 911 emergency communications system after she called the system three times to report she wasn't getting the chicken McNuggets she ordered at McDonald's.

Goodman explained her thinking:

"When you feel that you've been mistreated or misused or robbed out of your money, you have the right to call 911," Goodman said. "That's the purpose of 911, so I thought."

When told by police the situation did not classify as an emergency, a police report indicated Goodman had the following retort:

"This is an emergency. If I would have known they didn't have McNuggets, I wouldn't have given my money, and now she wants to give me a McDouble, but I don't want one. This is an emergency."

Although the story probably gets plenty of laughs, this is not close to the first time such a fast food "emergency" has occurred (see below links). So, as a public service, here's some clarification on when to go ahead and punch up 9-1-1, so that the call won't lead to very annoyed authorities, fines, and/or jail time. Each state classifies and penalizes the crime of misusing its 911 system in different ways but, without exception, 911 is intended only for emergencies. Now, as can be seen, people have apparently interpreted that word to highly varying degrees. However, if someone's life or health is in danger (no, not from McNugget deprivation), please go ahead and make the call. Another hint is whether time is of the essence in a situation, does someone need help immediately, or as soon as possible? Most misdirected 911 calls do not result in legal consequences, as an operator will usually just tell the caller as much. But once someone starts repeating their mistake, they really are opening themselves up to face legal consequences.

On a bright note, not one to let a clearly devoted customer shoulder the entirety of the blame alone (Goodman says she'll keep visiting the golden arches), McDonald's has issued its own mea culpa over the incident in a release as follows:

"Satisfying each and every customer that visits our restaurants is very important to us. Regarding this isolated incident, we apologize for the inconvenience caused. In the event that we are unable to fill an order, a customer should be offered the choice of a full refund or alternative menu items. We regret that in this instance, that wasn't the case. We want to correct our mistake. We will be sending the customer her refund, along with an Arch card for a complimentary meal on us. We never want to disappoint a McNuggets fan or any McDonald's customer. Customer satisfaction is our top priority.

Carlos Solorzano
McDonald's Operations Manager Florida Region"

In a similar spirit of cooperation, Goodman is going to excercise some restraint at the point-of-order too, as she said, "I'm not going and just giving up my money like that, no, but I'm going to ask them would they please check and see if they have what I want on the menu, and if they tell me yes, then I will order."

In one its most significant decisions this Term, the United States Supreme Court has ruled in favor of musician Diana Levine in her lawsuit against the pharmaceutical company Wyeth. What the decision means is that drugmakers do not get a complete defense to state law products liability lawsuits simply by getting an OK from the U.S. Food and Drug Administration (FDA) for their drugs' warning labels.

The case was brought after the plaintiff, professional musician Diana Levine, went in to a local clinic for treatment of a migraine headache. After a first round of treatment failed to help, her doctor administered Wyeth's nausea drug Phenergan using a method called an "IV-push" which is basically a direct injection into a vein. That doesn't sound like too big a deal, but Phenergan is "corrosive and causes irreversible gangrene if it enters a patient's artery," which is exactly what happened to Levine. She ended up getting gangrene from the injection, resulting in the amputation of her hand and forearm, substantial medical expenses, and the loss of her livelihood as a musician.

Levine sued in Vermont state court and won nearly $7 million, arguing that Wyeth should have placed better warnings on its labels regarding intravenous injection of the drug. Wyeth, on the other hand, indicated that its label had been "deemed sufficient by the [FDA] when it approved Wyeth's new drug application in 1955 and when it later approved changes in the drug's labeling." Notably, the warning label actually did point out the dangers of inadvertently injecting the drug into an artery, including "gangrene requiring amputation". Those FDA approvals, Wyeth argued, should provide it with a complete defense to Levine's claims because the federal drug labeling law under the Federal Food, Drug, and Cosmetic Act preempts (i.e. trumps) state law product liability claims based on inadequate warnings.

It was a case that some commentators felt presented the pharmaceutical industry with what was a golden opportunity that the Supreme Court could "eliminate most of pharmaceutical liability under state tort law in one fell swoop". However, the Supreme Court instead ruled against Wyeth, finding it was not impossible for the company to comply with its obligations under both state and federal law. Put another way, drug companies can satisfy their requirements under federal law, and also meet any potentially tougher state law requirements and this in no way defeats the purpose of the federal statute.

The policy arguments raised by the case had been raging for months. An earlier report by the Washington Post noted that on one side, consumer safety could be on the line:

"Rep. Henry A. Waxman (D-Calif.), one of 18 members of Congress who filed a brief supporting Levine, said in an interview that the 'threat of liability acts as one of the most powerful incentives for companies to be more concerned about safety.'"

On the other hand, the argument was made that some beneficial or potentially lifesaving drugs could be kept off the market because "the pharmaceutical industry could face massive liability" from state products liability suits if Levine ended up winning. The same story noted that "[c]ourts have been flooded with product liability lawsuits in recent years, and statistics show about a third are against drug companies. More than 27,000 lawsuits are pending over Merck's painkiller Vioxx, one of several FDA-approved drugs withdrawn because of health hazards."

A number of same-sex spouses and widows who were legally married in Massachusetts have filed a lawsuit against the federal government, claiming that a 1996 federal law discriminates against married same-sex couples by limiting certain protections and benefits that are normally provided to married couples of the opposite sex.

The lawsuit was filed in Massachusetts federal court on Tuesday, by the Gay and Lesbian Advocates and Defenders (GLAD), on behalf of eight same-sex couples and three surviving spouses who are (or were) legally married under a Massachusetts law that has been in place since 2004. According to the lawsuit, the couples and widows have applied for and been denied a number of federal benefits that hinge on marital status, including health benefits for spouses of U.S. Postal Service and Social Security Administration employees, marriage-related tax breaks from the IRS, and survivor annuities provided to widows of former members of the U.S. Congress. In denying the plaintiffs' requests for benefits, the lawsuit alleges, the defendant federal agencies and authorities "have stated that the federal government will only respect marriages between a man and a woman," citing a federal law called the Defense of Marriage Act, which was signed by President Bill Clinton in 1996.

The Los Angeles Times reports: "Legal analysts predicted it will be years before the suit makes its way through the federal court system, but said they believed it had a good chance of eventually leading to the invalidation of the act's power to discriminate on the basis of sexual orientation."


Federal investigators probing the September crash of a Metrolink passenger train released text messages at the center of controversy regarding the crash. Records show the Metrolink engineer sending and receiving many text messages while operating the train, including shortly before he ran a purportedly red light and crashed into a Union Pacific freight train, killing 24 passengers and himself.

As reported in the LA Times' LA Now, Metrolink engineer Robert Sanchez was twice warned by supervisors about improper use of cell phones while in train control cabins. On the day of the crash, he sent and received 57 text messages, including one 22 seconds before the crash.

Also troubling is that messages from Sanchez show that he allowed rail enthusiasts into the control cabin, which is forbidden by Metrolink policies. As the San Francisco Chronicle reports, on that fateful day Sanchez text messaged a teenaged rail enthusiast about plans to let the teen drive the train that evening.

The conductor of the Union Pacific freight train (though not driving at the time) was also texting shortly before the crash. And he tested positive for marijuana.

Despite conflicting accounts, National Transportation Safety Board investigators have determined that the signal light passed by the Metrolink train was red, indicating that Sanchez should have stopped and waited for the other train to pass.

The accident resulted in an emergency order by the Federal Railroad Administration banning use of cell phones and other electronic devices by train operators, as reported by USA Today.

The accident also prompted signing of the Rail Safety Act by President Bush in October. This mandated "positive train control" technology, which can stop a train that runs a red light or goes off the tracks, by 2015. The new laws also limit train operator shifts to 12 hours or less.

A drug court program in Pennsylvania has brought on an uproar of criticism after a committee approved hundred of dollars to be used for an abortion. Blair County's Adult Drug Court is a sentencing program "used to help drug dealers and addicts kick their habits" but this particular use of funds was met with fierce resistance. 

In its story, the AP summarized the woman's history and a drug counselor's decision as follows:

"The woman's parents had disowned her after she had her first child, and the woman became pregnant again. She had been in drug treatment for 18 months and the counselor was concerned she would relapse without the abortion."

Although Blair County Drug Court Committee explained that the funds for the loan did not come from taxpayer money but instead from a $5 per week fee that drug court defendants pay (the loan was actually repaid by an anonymous donor), the Committee nevertheless decided to take back the money after court officials complained.

Other county and court officials could not see a connection between an abortion and keeping someone off drugs. Indeed, County District Attorney Richard Consiglio said, "If it ever happened again I would shut down the program because I'm the one who recommends people, and if I don't recommend anybody there's nobody in the program therefore there's no program."

For anyone wondering generally what the difference is between a drug court and a regular criminal court, the Marks Law Firm, L.L.C., explains:

"Drug courts combine criminal justice and medical treatment models to deal with drug crimes. They recognize that incarceration may not be the most effective method for breaking the cycle of drug addiction and crime, especially for first-time and low-level offenders. Drug courts emphasize a cooperative approach between the prosecutor, defendant and court, and they favor rehabilitation over jail. Successful completion of drug court programs can result in reduced charges or sentences, or dismissal of charges altogether."

Thus, the Blair County Adult Drug Court program provides an alternative (complete or in part) to doing jail time for certain drug offenses. On the other hand, if an offender fails to complete the program successfully, the court can reimpose the original sentence. Although such programs in many cases have significant leeway on how they go about treatment in each individual case, they are not immune from oversight at a political level, as seen in Blair County.

Going back to the subject of Blair County, however, the president of the Committee, Judge Jolene Kopriva, provided assurances that such an approval would never happen again, and some county officials appear quite determined to hold her to that.

Next "Victim" of the Recession the Death Penalty?

Cash-strapped states are eyeing what some may think is an unlikely target for their budget axes: the death penalty. In what is likely to become a heated debate over policy, CNN is reporting that some states have introduced legislation to "take the death penalty off the books over financial concerns."

The subject of the "cost" of the death penalty is nothing new to either side of the debate. However, hard numbers produced by states on the actual costs of seeking the death penalty are now being thrown into the discussion. For example, in Kansas a bill has been introduced to abolish the death penalty in that state, as noted by CNN:

"'Because of the downturn in the national economy, we are facing one of the largest budget deficits in our history,' state Sen. Carolyn McGinn, a Republican, said in an opinion piece posted on TheKansan.com Friday. 'What is certain is we are all going to have to look at new and creative ways to fund state and community programs and services.'

The state would save more than $500,000 per case by not seeking the death penalty, McGinn wrote, money that could be used for 'prevention programs, community corrections and other programs to decrease future crimes against society.'"

On the other side, Kansas Attorney General Steve Six claimed the repeal was a "flawed idea" because "opponents don't take into account many cost savings associated with having the death penalty as an option." The Sacramento Union published a piece on a study released last week by the Criminal Justice Legal Foundation (CJLF) which pointed out an oft-ignored cost-saving factor of the death penalty. Specifically, in "states where the death penalty is the maximum punishment, a larger number of murder defendants are willing to plead guilty and receive a life sentence," thus resulting in savings by avoiding expensive trials altogether in those cases.

As noted by both sides in the debate, it is difficult to pinpoint the cost of the death penalty if an arguably "interested party" is the one conducting the research. Regardless, some states have been making increased efforts to do just that. For example, based on other states' "[t]horough, unbiased study and review" of their justice systems, California's Senate created the California Commission on the Fair Administration of Justice to review its own.

The Death Penalty Information Center summarized the Commission's findings on the death penalty as follows:

  • Using conservative rough projections, the Commission estimates the annual costs of the present (death penalty) system to be $137 million per year.
  • The cost of the present system with reforms recommended by the Commission to ensure a fair process would be $232.7 million per year.
  • The cost of a system in which the number of death-eligible crimes was significantly narrowed would be $130 million per year.
  • The cost of a system which imposes a maximum penalty of lifetime incarceration instead of the death penalty would be $11.5 million per year.

However, the Commission's findings have been criticized by studies such as the CJLF's, and other states such as Georgia, Texas, and Virginia appear to be looking elsewhere for their budget cuts as officials told CNN they intend to continue to seek the death penalty in the appropriate cases. Although a bill to abolish the death penalty is before the Texas legislature, a county District Attorney Pat Lykos told CNN she intends to proceed with the nearly 200 pending death penalty cases she has. Also, earlier this month Virginia expanded "capital punishment to include those who assist in a murder, and those who kill an auxiliary police officer or on-duty fire marshal."

In sum, even though the economy is putting the squeeze on states' budgets, it appears the debate on the death penalty is far from over, as Lykos told CNN, "We will spare no expense. We will go after them. Justice has no price tag."

Southwest Airlines will pay a $7.5 million dollar penalty for aircraft maintenance lapses disclosed by the company in 2007, and the popular air carrier agreed to take a number of steps to enhance its safety practices, the Federal Aviation Administration (FAA) announced on Monday.

The settlement stems from an initial $10.2 million penalty proposed against the Dallas-based air carrier, for operating 46 airplanes -- amounting to 59,791 Southwest flights between June 2006 and March 2007 -- without performing required safety checks for potential fatigue cracking in the aircraft's fuselage, the FAA anounced. The $7.5 million fine could double to $15 million if Southwest Airlines fails to meet certain safety-related goals set out under the settlement agreement, according to the FAA News Release.

Reuters reports that "concerns over the safety of Southwest planes were brought to light by FAA whistle blowers, who took the information to Congress," but "Southwest contends it has always aggressively inspected its aircraft and has always operated safely."

Last week, Attorney General Eric Holder signaled that federal raids on medical marijuana dispensaries will not continue under President Obama's administration.

MSNBC reports that Holder was asked about such raids after two California medical marijuana dispensaries were raided by the DEA in early February. Holder is quoted as saying, "[w]hat the president said during the campaign ... will be consistent with what we will be doing here in law enforcement." As the Wall Street Journal's Law Blog points out, what Obama said during the campaign includes what seems to be an openness to states who choose to legalize the controlled use of medical marijuana.

Prior to Attorney General Holder's comments, a change in course in the new administration was signaled immediately following DEA raids on the California dispensaries. At that point, Obama's appointees had yet to take over at the DEA. As quoted in the Washington Times, White House spokesman Nick Shapiro told reporters that, "[t]he president believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind."

According to US News and World Report, twelve states currently have some form of medical marijuana laws on the books. Criminalization of marijuana has been challenged recently as antithetical to the budget crisis faced by states around the country. As US News reports, states in the red are rethinking their approach to the incarceration of non-violent drug offenders.

Some would go further -- like California state Representative Tom Ammiano, who thinks the state should legalize, regulate and tax marijuana cultivation. As reported in the San Francisco Chronicle, last week he put forth a proposal to do just that, with state analysis estimating such a measure would bring cash starved California $1.3 billion per year in taxes and fees. 

It's highly unlikely that the Obama administration will go as far as Ammiano. Nor has there been any indication that any federal laws against marijuana will change. However, signals so far indicate that under new management, the DEA may not fight states that decide to allow medical marijuana.


 

The AP reported on Monday that legislators in Congress restarted their attempt to have cigarettes regulated at the federal level. The story noted this is not the first effort to do so, but with President Obama in office the legislation clearly has a much better chance at becoming law:

"President Barack Obama has been an occasional smoker who acknowledged recently that quitting hasn't been easy. While in the Senate last year he co-sponsored legislation that would have given the Food and Drug Administration authority to regulate cigarettes and other tobacco products, to reduce the harm from smoking."

However, even though that legislation was popular and passed the House last summer, President Bush threatened a veto and it never got a vote in the Senate.

Nancy Brown, head of the American Heart Association and a proponent of the bill, argued that "[f]ederal government oversight is necessary to hold the industry accountable." Opponents on the other hand, claim that the FDA can't handle the task. The AP story quoted Dr. Scott Gottlieb, an FDA official during the Bush administration, who said "I believe it's going to gut the agency's resources and distract it from its core mission."

It should be noted that even if the legislation gets passed and signed into law, it would not let the FDA flat-out ban tobacco or nicotine. What it would do, however, is allow the agency to "demand the reduction or elimination of cancer-causing chemicals in cigarette smoke." It would also ban "candy flavored cigars and cigarettes, and would give the FDA authority to ban menthol."

The tobacco industry has been in legal news at the state level, recently as well. Earlier last month, tobacco giant Philip Morris suffered a serious blow after a Florida jury ruled that chain-smoker Stuart Hess's death was caused by his addiction to cigarettes. A jury later found that Philip Morris should pay his widow and son $8 million dollars in combined punitive and compensatory damages. The current legislation proposed at the federal level would not affect such a case, nor the nearly 8,000 individual other similar cases in Florida, which are governed by the state's laws.

The Pew Center for the States released a report today showing that as of 2007, 1 in 31 American adults (7.3 million) were in the American correctional system. With this number largely constituted by an exploding number of people on parole or probation, the report urges increased emphasis on community corrections strategies.

Last February, the Pew Center released a report showing that 1 in 100 American adults was in jail or prison. According to this year's report, more than double that number is within the corrections system but out on parole or probation. Despite the fact that a vast majority of the corrections system population live on the outside, the report found that 90% of state corrections dollars are spent on prisons. The report cites research indicating that large spending on prisons yields decreased detterence of crime. Many incarcerated offenders, according to the report, pose little threat to public safety and could be much more economically held accountable for their crimes without imprisonment.

The report argues that community supervision strategies, where benefits per dollar are much larger, must be expanded, not cut, despite current financial constraints. At a time when states face gaping budget shortfalls, the report urges that each state could benefit from increased emphasis and spending on community corrections.

Such spending dilemmas come at a time when many states face over-strained prison systems that soon, if that haven't already, will burst beyond reasonable capacity. In an example of the financial choices posed by the Pew Center's report, North Carolina faces an enormous budget shortfall, an overwhelmed prison system, and proposed slashing of spending on community corrections. As reported by Raleigh Durham's WRAL, North Carolina Governor Beverly Perdue is considering halving state spending on community based programs (from about $20 million to about $10 million).

Officials in states with overstrained prison systems wish to avoid the fate of their counter-parts in California, where (as reported by the San Francisco Chronicle) a panel of federal judges recently ordered the potential release of tens of thousands of inmates in order to bring state prison conditions up to constitutional minimums. South Carolina's The State reports that S.C. Corrections Department Director Jon Ozmint has prepared plans for early release, if necessary, of non-violent offenders to help to stem South Carolina's budget woes. According to the New Hampshire Union Leader, New Hampshire legislators are debating increased community correction emphasis to cushion looming cuts to prison budgets.


 

Although the off-season looked like it was going to kick off on a nice, mature note for talented Denver Broncos wide receiver Brandon Marshall after he got engaged to his girlfriend Michi Nogami while in Hawaii for the Pro Bowl, the AP reports things might have taken a turn for the worse Sunday as Marshall was arrested for disorderly conduct stemming from a fight. Recent reports have updated the story to note the charge against Marshall has now been dismissed, but as far as the NFL is concerned, that would not be the end of the story.

Since this is not nearly the first time Marshall has broken the end-zone of legality, it's likely the league will be taking a close look at the situation for disciplinary purposes. In fact, the Denver Post indicated that the "charge means Marshall is facing a lengthy suspension — possibly up to a full season — by NFL commissioner Roger Goodell for violating the league's personal conduct policy." As noted by the Post, Marshall received a three game suspension last season (later reduced to one, plus a fine) after "at least seven police-related incidents with his former girlfriend Rasheedah Watley."

After Marshall was arrested last year on a misdemeanor battery charge that involved a domestic dispute, the Post detailed the litany of legal troubles the receiver has faced. Although many employers might not even find out if one of their employees has suffered an arrest, NFL players must deal with intense media attention, plus the league's strict code of conduct.

The NFL's Personal Conduct Policy specifies:

"While criminal activity is clearly outside the csope of permissible conduct, and persons who engage in criminal activity will be subject to discipline, the standard of conduct for persons employed in the NFL is considerably higher. It is not enough simply to avoid being found guilty of a crime. Instead, as an employee of the NFL or a member club, you are held to a higher standard and expected to conduct yourself in a way that is responsible, promotes the values upon which the League is based, and is lawful."

The policy goes on to specify, in fairly expansive terms, the type of conduct that can lead to discipline. Notably, this would include conduct that "undermines or puts at risk the integrity and reputation of the NFL, NFL clubs, or NFL players" even if the player never gets convicted for that conduct. The multiple publicity bruisings suffered by the league for players' misconduct in recent years were what resulted in the arguably extreme policy, which gives the league broad discretion to impose significant discipline for off-the-field conduct, regardless of whether it gets proved in court. For that reason, the dismissal of the charge against Marshall doesn't mean he's in the clear as far as what the league decides on discipline.

As a sidenote, even without the heavy media attention of sports star employees, many employers have codes of conduct that their employees sign upon employment (with widely varying terms). More importantly, employees should be aware that employers are often addressing various forms of outside-of-work conduct in their policies. This is particularly noticeable in the way employers have begun to address employees' off-work conduct on the Internet, in light of the proliferation of social and professional networking sites such as Facebook, MySpace, and LinkedIn. Employees are well advised to stay informed about the policies they work under, as well as developing laws, so that they don't run into unexpected trouble on the job for something they do off-the-job.

A new "Death with Dignity" law goes into effect in the state of Washington on Thursday, allowing doctors in the state to prescribe lethal levels of medication for certain patients who have received a terminal prognosis and been given six months or less to live.

Physicians and health care facilities in the state may choose not to provide services under the Washington 'Death with Dignity' Act, which was approved by voters last November. And as the Seattle Post-Intelligencer reports, at least two major hospitals in the state have already announced that they will not provide treatment under the new law.

The new Washington 'Death with Dignity' Act closely mirrors Oregon's version of the law, which has been on that state's books since 1994. A 2006 U.S. Supreme Court decision upheld Oregon's assisted-suicide law, and declared that states have the authority to regulate health care, including the legality of controversial practices like physician-assisted suicide. According to the Atlanta Journal-Constitution, 36 states have specifically criminalized assisted suicide, while courts in six more states and the District of Columbia have issued rulings that effectively outlaw the practice.