Wednesday, November 30, 2011

Lawsuit Against Microsoft Brings Gates To The Stand

Story first appeared in the Associated Press.

Microsoft's Bill Gates returns to the witness stand Tuesday to defend his company against a $1 billion antitrust lawsuit that claims the software giant tricked a competitor into huge losses and soared onto the market with Windows 95. A Boston Intellectual Property Lawyer was keeping himself posted as the case continued.

Utah-based Novell Inc. sued Microsoft in 2004. The company says Gates duped them into thinking he would include its WordPerfect writing program in the new Windows system, then backed out because he feared it was too good. A Frankfurt Intellectual Property Lawyer watched the high profile case closely.

Novell said it was later forced to sell WordPerfect for a $1.2 billion loss.

Gates testified Monday that Microsoft was racing to put out Windows 95 when he dropped technical features that would no longer support the rival's word processor because engineers warned it would crash the system. A Leeds Intellectual Property Lawyer thought that this appeared to be a reasonable answer.

Windows 95 was a major innovation, and Gates said he had his mind on larger issues. A Nashville intellectual Property Lawyer said this is not uncommon.

Gates said Novell just couldn't deliver a Windows 95 compatible WordPerfect program in time for rollout, and its own Word program was actually better. He said that by 1994, Microsoft Word was rated No. 1 in the market above WordPerfect. A Pittsburgh Intellectual Property Lawyer said she liked Microsoft Word.

WordPerfect once had nearly 50 percent of the market for computer writing programs, but its share quickly plummeted to less than 10 percent as Microsoft's own office programs took hold.

Microsoft lawyers say Novell's loss of market share was its own doing because the company didn't develop a Windows compatible WordPerfect program until months after the operating system's rollout. A San Francisco intellectual Property Lawyer agreed this would be a tough argument.

Gates called it an "important win" in an email to executives.

Attorneys for Novell, a wholly owned subsidiary of The Attachmate Group as a result of a merger earlier this year, concede that Microsoft was under no legal obligation to provide advance access to Windows 95 so Novell could prepare a compatible version. The Redmond, Wash.-based company, however, enticed Novell to work on a version, only to withdraw support months before Windows 95 hit the market, Novell attorney Jeff Johnson said. A Zurich intellectual Property Lawyer listen closely.

Microsoft lawyer David Tulchin argued that Novell's missed opportunity was its own fault, and that Microsoft had no obligation to give a competitor a leg up.

U.S. District Judge J. Frederick Motz late Monday denied Microsoft's request to dismiss the case. He said Novell's claims appeared thin but that he would let the case continue another month and allow a jury to decide. An Athens Intellectual Property Lawyer said a jury would have a tought choice to make.

Gates was the first witness to testify Monday in his company's defense after a month-long case by Novell. Cross-examination begins Tuesday.

Gates, a billionaire, began by testifying about Microsoft's history. He was just 19 when he helped found the company. Today, Microsoft is one of the world's largest software makers, with a market value of more than $210 billion. A Bucharest Intellectual Property Lawyer would like to have Gates as a client.

Vioxx Case Causes Merck to Plead Guilty

Story first appeared in USA TODAY.

Drug giant Merck has agreed to plead guilty and pay $950 million to settle criminal and civil charges over the marketing of the arthritis painkiller Vioxx, which studies showed increased the risk of strokes and heart attacks, the Justice Department has announced. A Charleston Defective Drug Lawyer was not surprised.

Merck pulled Vioxx from the market in September 2004.

The company pleaded guilty to a single misdemeanor charge of violating the Food Drug and Cosmetic Act for introducing a misbranded drug and will pay $321.6 million. An Indianapolis Defective Drug Lawyer said these are the types of cases he works on.

Merck will also pay $628.3 million to settle civil charges for off-label marketing of the drug and making false statements about its cardiovascular safety. The federal government will get $426.3 million and $201.9 million will be distributed to 43 states for Medicaid.

Read the full news release.

One Minneapolis Defective Drug Lawyer agrees that when a pharmaceutical company ignores FDA rules aimed at keeping our medicines safe and effective, that company undermines the ability of health care providers to make the best medical decisions on behalf of their patients. As this plea agreement and civil settlement make clear, some will not hesitate to pursue those who skirt the proper drug approval process and make misleading statements about the safety and efficacy of their products. A Salt Lake City Defective Drug Lawyer thought that he would consider seeing a client about this case.

In its statement, Merck emphasized the civil settlement first, noting that it does not constitute any admission by Merck of any liability or wrongdoing.

Some believe that Merck acted responsibly and in good faith in connection with the conduct at issue in these civil settlement agreements, including activities concerning the safety profile of Vioxx. A Savannah Defective Drug Lawyer does not agree with this belief.

Merck's release also notes that the United States acknowledged that there was no basis for a finding of high-level management participation in the violation.

Tuesday, November 29, 2011

Eyewitness Testimony Questioned

Story first appeared in USA TODAY.

Supreme Court justices on Wednesday challenged the notion that testimony from arguably unreliable eyewitnesses should be specially scrutinized at trial because of how it can lead to wrongful convictions.

Why is unreliable eyewitness identification any different from unreliable anything else introduced at trial, Justice Antonin Scalia asked during arguments in a New Hampshire case.

Eyewitness identification evidence is unique, responded lawyer Richard Guerriero. He represents a man whose theft conviction was based partly on the report of a woman who said she watched him out her apartment window. Guerriero called mistaken IDs the leading cause of miscarriages of justice.

Justice Elena Kagan said jailhouse informants could also create an especially unreliable category.

Longstanding national concerns about the trustworthiness of eyewitness accounts formed the backdrop of Wednesday's dispute. The American Psychological Association, which has entered the case on the defendant's side, says, Controlled experiments as well as studies of actual identifications have consistently found that the rate of incorrect identifications is approximately 33 percent.

Supreme Court cases dating to the 1960s have similarly stressed that eyewitness identifications are particularly untrustworthy and can lead to tainted jury verdicts and injustice. The question Wednesday is what safeguards for due process of law and fairness are necessary.

New Hampshire Attorney General Michael Delaney, urging the court to uphold the theft conviction, said identification evidence should be specially reviewed by a judge only when police obtained the ID through an unnecessarily suggestive police method — for example, in photos shown to a witness. The federal government and 29 states are siding with New Hampshire, urging the high court to leave the question of eyewitness reliability generally to a jury.

Wednesday's case arose after Barion Perry was identified by a woman watching from her window as a man peered into cars in a parking lot below, broke into one of them and took a stereo system.

A Nashua police officer who had been called to the scene stopped Perry when she saw him with a set of speakers. He said he had been there innocently and was just moving them. When another officer asked the witness in the apartment for a description of the person who broke into the car, the woman said it was the man in the lot talking to the other officer.

Appealing Perry's theft conviction, Guerriero said due process of law required the trial judge to specially review the witness's identification because Perry was standing next to a police officer when she identified him, possibly suggesting that police considered him a suspect.

Guerriero argued that special review of testimony is necessary when an identification is made under any suggestive circumstances, even those unrelated to police conduct.

Due process concerns arise, Attorney General Delaney countered, if it looks like police officers are essentially stacking the deck, putting their thumb on the scale and skewing the fact-finding process. He said police officers did not try to point the witness toward Perry.

Delaney noted in his brief that the witness was cross-examined at trial about the view from her fourth-floor apartment window and how it was partially blocked by a van, and that the jury nonetheless found Perry guilty.

Justice Stephen Breyer implied that no new judicial review should be required because judges already consider, before evidence is put to jurors, whether its relevance might be outweighed by the chance it would be misleading.

Justice Anthony Kennedy told Guerriero, he doesn't know what you want the police to do in this case. Kennedy said it might have been improper police conduct for police not to have asked the woman in the apartment who she saw in the lot below.

A ruling in the case of Perry v. New Hampshire is likely by the end of June when the justices usually recess for the summer.

Wednesday, November 23, 2011

Lawmakers Question MF Global Trustee’s Work on Lehman Brokerage

Story first appeared in Bloomberg News.

The trustee liquidating MF Global Holdings Ltd.’s brokerage came under fire from two Republican lawmakers who said he’s proven too slow at a similar task resolving the broker-dealer of Lehman Brothers Holdings Inc.

In a Nov. 4 letter to regulators, Representatives Ed Royce and Scott Garrett said they were concerned that the trustee, James Giddens, has been handling the Lehman liquidation for three years and made little progress returning money to customers and creditors. Meanwhile the process has cost more than $640 million, the lawmakers noted.

“As the trustee fees continue to mount” and the “resolution languishes, it is surprising that the very same trustee was recently selected to liquidate MF Global’s broker- dealer business,” the lawmakers wrote to U.S. Securities and Exchange Commission chief Mary Schapiro and Stephen Harbeck, the head of the Securities Investor Protection Corp.

Royce, of California, and Garrett, of New Jersey, both members of the House Financial Services Committee, said that although the Lehman case is more than three years old “no distributions have been made to customers, no settlements have been made with Lehman affiliates and no effort has been made to resolve unsecured claims against” the firm.

Harbeck’s group, known as SIPC, requested last week that Giddens, of the law firm Hughes Hubbard & Reed LLP, be named as the trustee for the MF Global brokerage liquidation. A federal judge approved the appointment on Oct. 31.

Retail Customers

John Nester, a spokesman for the SEC, which oversees SIPC, and Kent Jarrell, a spokesman for Giddens, declined to comment. Ailis Aaron Wolf, a spokeswoman for SIPC, had no immediate comment.

Most of the Lehman brokerage’s retail customers got access to their accounts within a couple of weeks of the bankruptcy after Giddens got them transferred to other firms. He’s now working on solving claims of hedge funds and other institutional investors.

Giddens, in a court filing last month, said he has gathered some $20 billion in the Lehman case and his goal is to “make a substantial distribution on customer claims, and to make interim distributions when it is possible to do so, possibly as early as the spring of next year.”

The bulk of the $642 million in expenses in the case have gone to consulting and financial advisory fees, according to the Oct. 21 court filing. Giddens and Hughes Hubbard have been paid about $169 million.
They’ve been working on the liquidation of Lehman Brothers Inc. since September 2008, shortly after the brokerage’s parent company filed the largest bankruptcy in U.S. history.

In their letter, Royce and Garrett said the “lack of progress” in that resolution “raises questions regarding what is expected of the trustee and the process by which these fees are approved.”

Employee Tries to Poison Restaurant Customers

Story first appeared in the Associated Press.

Animal medication was poured into a customers coffee with the intent to poison at a Big Boy restaurant in Ohio.

36-year-old Edwin Ledgard told Toledo Police that he had a delusion to kill customers. It was reported to the Toledo Police that a Frisch's Big Boy employee entered the store on his day off and poured a drug called Dextran into a pot of coffee.

The drug is used to treat anemia in baby pigs. According to Police another employee saw what ledgard was doing and took the vials from him. Ledgard was charged on contaminating a substance for human consumption and is awaiting a court appearance.

Intellectual Property Suit Over Cancer Pain Drug

All Stories first appeared in Bloomberg.

Impax Laboratories Inc. (IPXL) was sued by the Teva Pharmaceutical Industries Ltd. (TEVA) unit Cephalon Inc., alleging infringement of four U.S. patents for the drug Fentora, used to treat pain associated with cancer.

Cephalon, based in Frazer, Pennsylvania, contends Hayward, California-based Impax is planning to market a generic version of Fentora in violation of patent protections, according to papers filed Nov. 18 in federal court in Wilmington, Delaware.

Ciphalon lawyers contend that Impax Laboratories was aware of the patents, and plaintiffs will be irreparably harmed unless stopped by court order.

Cephalon is seeking a judgment of infringement, unspecified damages and an injunction to stop Impax’s generic sales.

In a statement yesterday, Impax acknowledged the challenge and said U.S. sales of the drug were about $159 million for the year ending in September.

Once its application is approved by the U.S. Food and Drug Administration, Impax intends to commercialize the drug.

Teva, based in Petach Tikvah, Israel, the world’s largest generic-drugmaker, acquired Cephalon last month in a $6.8 billion deal.

The case is Cephalon Inc. (CEPH) v. Impax Laboratories Inc., 11- cv-1152, U.S. District Court, District of Delaware (Wilmington).

Apple Wins Patent Fight With S3 Graphics at Trade Agency

Apple Inc. won a U.S. trade case brought by HTC Corp.’s S3 Graphics over a method of compressing images to appear three- dimensional on an electronic display.

The U.S. International Trade Commission said S3’s patent rights weren’t violated by Apple in a notice released yesterday on the agency’s website with the full decision to be released later. The commission gave no reason for its decision.

An agency judge found in July that Apple’s Mac computers infringed two S3 patents, while devices that run on the iOS mobile operating system, including the iPhone and iPad table computer, didn’t. The six-member commission reviewed the entire decision, including the effects of Apple’s agreements with Intel Corp. and Nvidia Corp. for graphics chips.

Phonemaker HTC, which announced it would buy closely held S3 for $300 million after the judge issued his findings, was counting on a victory to bolster its patent battles with Apple. The commission is also reviewing an agency judge’s determination that HTC infringed two Apple patents, and may take a look at a judge’s findings that cleared Apple of infringing HTC patents.

Apple and Taoyuan, Taiwan-based HTC have other patent- infringement cases against each other, and S3 has filed a second patent case against Apple at the trade agency. S3, of Fremont, California, makes image-compression technology and its Texture Compression feature is used in Nintendo Co.’s Wii and Sony Corp.’s PlayStation portable gaming systems.

The case is In the Matter of Certain Electronic Devices with Image Processing Systems, 337-724, U.S. International Trade Commission (Washington).


Vivid Claims ‘HTC Vivid’ Smartphone Name Infringes Trademark

Vivid Entertainment Inc. LLC, a maker of adult films, is demanding HTC Corp. (2498) change the name of its HTV Vivid mobile phone, the Sydney Morning Herald reported.

The company, which may be best known for marketing of the Kim Kardashian and Paris Hilton sex tapes, claims that the public may mistakenly assume an affiliation exists with the Taiwan-based mobile phone manufacturer, according to the newspaper.

Vivid sent HTC a cease-and-desist letter, threatening legal action if the name of the phone isn’t changed, the Herald reported.

HTC didn’t comment on the allegations, according to the newspaper.

Georgia Lottery Can’t Be Sued for Infringement, Court Rules

The Georgia Lottery Corp. won a trademark dispute against the holder of the “Moneybags” trademark, the Atlanta Journal- Constitution reported.

The state’s supreme court rejected a $5 million claim against the lottery by the holder of the mark who had licensed its use by the lottery from 1999 to 2002, according to the AJC.

The lottery’s ticket printer used the logo without permission in 2005 and 2007, the newspaper reported.

The high court said a legal doctrine known as “sovereign immunity” protected the state from liability, according to the AJC.

Texas Settles Battle With Volunteer Group Over ‘Alamo’ Mark

The Daughters of the Republic of Texas and the state have settled their trademark dispute, the Houston Chronicle reported.

Under the agreement, the state has the rights to “Alamo,” “The Alamo” and other logos, websites, names and titles related to museum and related service, according to the newspaper.

The Daughters of the Republic had been under fire for trying to register a trademark and entering into a $900,000 promotions contract that later was canceled, according to the Chronicle.

The Texas General Land Office and the Daughters will work out an agreement on how best to run the state historic site and generate enough money for needed repairs, the Chronicle reported.

For more trademark news, click here.


Baidu Accused of Enabling Unauthorized Game Downloading

Baidu Inc., China’s biggest Internet company, is being sued for copyright infringement by a game-developers’ industry group, Agency France-Presse reported.

Content Provider Union is seeking 30 million yuan ($4.7 million) in compensation from Baidu for allegedly providing unauthorized downloads of more than 350 games for mobile devices designed by its members, according to AFP.

Baidu denied that it’s permitting users to link to any but authorized games, AFP reported.

A court in Beijing agreed to hear the case, according to the French news service.

Netflix’s Entry in Ireland May Be Slowed by Licensing Issues

Efforts by Netflix Inc. (NFLX), the mail-order and online video service, to enter the Irish market may be affected by existing licensing agreements Hollywood studios already have in place with British Sky Broadcasting Group Plc (BSY), the Irish Times reported.

Content from those studios is available to Sky’s Irish subscribers on digital platforms, according to the Irish Times.

The newspaper reports that the studios may not want to agree to Netflix’s model of subscription-based service instead of a per-transaction model.

Netflix, based in Los Gatos, California, has said it would start its Irish subscription service for online film and television streaming some time in 2012, Irish Times reported.

For more copyright news, click here.

Trade Secrets/Industrial Espionage

DoubleLine Expert Disputes Trade-Secret Royalties Owed to TCW

An expert witness for DoubleLine Capital LP disputed the amount of trade-secret royalties his client owes to TCW Group Inc.

The expert, Michael Wallace, disagreed with the calculation performed by TCW’s expert. A California judge said he will rule on the matter by the end of January.

The case is Trust Co. of the West v. Gundlach, BC429385, California Superior Court, Los Angeles County (Los Angeles).

Ex-AllianceBernstein Employee to Plead Guilty, Lawyer Says

A former AllianceBernstein Holding LP (AB) employee accused of stealing software from the fund manager will plead guilty to computer trespass, his lawyer said.

Peter Jan, 35, who was an application support specialist at the investment-management company, was accused in April of stealing software used to send and receive messages related to clients’ securities transactions and charged with computer trespass, grand larceny and unlawful duplication of computer- related materials.

He will plead guilty today to one count of felony computer trespass as part of a deal with Manhattan District Attorney Cyrus Vance Jr.’s office, said one of Jan’s attorneys, Jeremy Saland. Vance’s office didn’t immediately respond to a request for comment.

Jan will be able to withdraw his plea to the felony count and plead instead to a misdemeanor charge of attempted criminal trespass if he completes 100 hours of community service and stays out of trouble, Saland said. As a result, Jan will face no jail time and no probation, Saland said.

Prosecutors said Jan gave notice to New York-based AllianceBernstein on March 8, 2010, and was supposed to leave the company 11 days later. On four occasions, prosecutors said, he downloaded software used by the company for FIX messages, a financial information exchange standard. Jan was fired on March 15, 2010.

Jan is admitting to unauthorized use of a computer and isn’t pleading to any theft in any way.

A felony conviction carrying as much as four years in prison would “certainly preclude him from many career paths.

The case is People vs. Jan, 01784/2011, New York State Supreme Court, New York County (Manhattan.)

IP Moves

Hogan Lovells Expands IP Practice With Automotive Expert

Hogan Lovells LLP hired Song Zhu for its IP practice, the Washington-based firm said in a statement.

Song, who does litigation and works with Chinese clients, joins from Cleveland’s Squire Sanders & Dempsey LLP. Before he was a lawyer, he was a senior engineer at General Motors Co. (GM), where he did research on a variety of vehicle systems.

He has represented clients in patent and trade secret disputes and has done IP-related transactional work for clients in the semiconductor manufacturing, electronic device, telecommunication, computer systems and software, renewable energy, automotive systems, and medical device industries.

Rate of People Passing the California State Bar Holds Steady

Story first appeared in the Sacramento Business Journal.

A total of 4,635 people passed the July 2011 California State Bar exam, a pass rate of 54.8 percent, state bar officials announced late Friday.

That’s the same pass rate as the July 2010 exam. The highest pass since 1951 is 63.2 percent for the July 1994 test; the low, 28.1 percent for a test in the spring of 1986.

Successful applicants who have satisfied other requirements for admission to the State Bar of California may take the attorney’s oath individually or participate in admissions ceremonies held throughout the state in December.

Applicants must have passed the multistate professional responsibility exam, received confirmation of a positive moral character and not owe back family or child support payments.

Preliminary statistics show 8,456 applicants took the July 2011 test. Almost three-quarters — 71.9 percent — were first-time takers. The passing rate for first-timers was 69 percent.

The passing rate for the 2,376 applicants repeating the exam was 18 percent.

Pass rates were highest — 76 percent of first-timers — among applicants who went to American Bar Association -sanctioned schools in California. The same rate for students from ABA-sanctioned schools outside California was 66 percent.

The UC Davis School of Law and University of the Pacific McGeorge School of Law are the only ABA-sanctioned law schools in the Sacramento region.

The passing rate drops precipitously when schools are not ABA-sanctioned.

Pass rates for California accredited schools (but not ABA) among first-timers was 35 percent. It was 31 percent for students from unaccredited distance-earning programs, 16 percent for unaccredited facilities and 14 percent at correspondence schools.

Judge Suspended

Story first appeared in the Associated Press.

The Texas Supreme Court suspended a judge Tuesday whose beating of his then-teenage daughter in 2004 was viewed millions of times on the Internet.

Aransas County court-at-law Judge William Adams was suspended immediately with pay pending the outcome of the inquiry started earlier this month by the State Commission on Judicial Conduct, according to an order signed Tuesday by the clerk of the state's highest court.

The order makes clear that while Adams agreed to the commission's recommended temporary suspension and waived the hearing and notice requirements, he does not admit guilt, fault or wrongdoing regarding the allegations. His attorney did not immediately return a call from The Associated Press seeking comment.

Adams' now 23-year-old daughter Hillary Adams uploaded the secretly-recorded 2004 video of her father beating her repeatedly with a belt for making illegal downloads from the internet.

William Adams has not sat on the bench since the video went viral. It has been viewed more than 6 million times on YouTube.

The public outcry over the video was so great that in a rare move the, State Commission on Judicial Conduct announced publicly Nov. 2 that it had opened an investigation. A statement from the commission then said that it had been flooded with calls, emails and faxes regarding the video and Adams.

William Adams appeared in court Monday for a day-long hearing regarding the custody of his 10-year-old daughter. His wife had sought a change in their joint custody agreement, and another judge imposed a temporary restraining order effectively keeping William Adams from being alone with his younger daughter until he reached a decision. An order was expected in that dispute Wednesday.

As Aransas County's top judge, William Adams has dealt with at least 349 family law cases in the past year alone, nearly 50 of which involved state caseworkers seeking determine whether parents were fit to raise their children. A visiting judge has been handling his caseload.

After reviewing the investigation conducted by local police, the Aransas County district attorney said too much time had passed to bring charges against William Adams.

Sandusky's Bail Changes

Story first appeared in the Associated Press

Former Penn State assistant football coach Jerry Sandusky's status as a free man could change if more accusers surface and police file new charges, as his lawyer fears.

Sandusky, now awaiting trial on charges he sexually abused eight boys over 15 years, could then find himself with a high bail he might not be able to pay, criminal defense lawyers said Tuesday.

Sandusky was released after his Nov. 5 arrest on $100,000 unsecured bail, meaning he didn't have to post any collateral to be freed.

His attorney, Joe Amendola, told ABC's "Good Morning America" on Tuesday that he was worried there may soon be new criminal allegations against his client.

His concern is, if they bring new charges based upon new people coming forward, that bail's going to be set and he's going to wind up in jail.

Prosecutors don't have to start all over. The additional counts would result in another arrest, another bail piece, another preliminary hearing date being set.

All four common pleas judges in Centre County, where Penn State is located, removed themselves from potentially presiding over the case and were replaced Tuesday by outside jurists, the Pennsylvania court system announced.

The Administrative Office of Pennsylvania Courts said in a release that the judges bowed out"to avoid any appearance of conflict of interest due to real or perceived connections to Sandusky, the university or the charity for at-risk children Sandusky founded.

John M. Cleland, a senior judge from McKean County, was appointed to take over the case, though another judge, Kathy A. Morrow, was named to handle matters until Cleland can assume jurisdiction.

Cleland chaired the Interbranch Commission on Juvenile Justice, established in the wake of the "kids-for-cash" courthouse scandal in which Luzerne County judges were accused of sending children to private detention centers for kickbacks.

The court system said neither Cleland nor Morrow, president judge in Perry and Juniata counties, have any known connections to Sandusky, the university or the charity.

Morrow immediately signed an order to prevent people involved in the case from disclosing the name of an individual described by his lawyers as a victim of and witness to child sexual abuse.

The temporary order, issued at the request of two State College attorneys, instructed court officials and the parties to refer to him as "John Doe."

The Centre County clerk's office was told to seal any portion of the record that refers to him by name, and the motion seeking the order was itself sealed. Messages seeking comment from his lawyers weren't immediately returned.

Also Tuesday, Sandusky's preliminary hearing was rescheduled for Dec. 13 at the Centre County Courthouse in Bellefonte. It will be handled by an out-of-county jurist, Westmoreland County Senior District Judge Robert E. Scott.

Scott replaced the district judge who set bail for Sandusky, Leslie Dutchcot of State College, who had ties to The Second Mile, Sandusky's charity. The court order said the change was designed to avoid any appearance of impropriety.

If Scott has to make new decisions about bail, they would come in the context of public outrage over the allegations, which include charges that Sandusky found victims among boys being helped by The Second Mile.

Until the preliminary hearing, prosecutors can seek to have bail modified by the district judge, said Lehigh County District Attorney Jim Martin. After that hearing, bail changes would have to be pursued by a county court petition, he said.

Criminal complaints can also be amended before a preliminary hearing but afterward the defendant would have to be rearrested, and then the prosecution and defense would argue over whether to consolidate the two sets of charges for trial.

An attorney general's office spokesman declined to comment on the Centre County judges' recusal or about potential new charges against Sandusky.

The scandal has resulted in the ouster of Penn State President Graham Spanier and head football coach Joe Paterno and has cast a dark shadow over one of college football's most legendary programs. Athletic Director Tim Curley has been placed on leave, and Vice President Gary Schultz, who oversaw the university's police department, has stepped down.

Schultz and Curley are charged with lying to a grand jury and failing to properly report suspected abuse to authorities. Like Sandusky, they have denied the allegations.

Friday, November 18, 2011

Judge to give Fox Sports a chance to speak

Story first appeared in the Los Angeles Times.

Network, whose television contract prevents the team from negotiating with any other party besides Fox through Nov. 30, 2012, is opposed to the Dodgers' intention of selling their television rights separately from the club.

Judge vows that Fox Sports will get a fair say in Dodgers sale
Fox Sports will get a "full and fair" say as the U.S. Bankruptcy Court decides whether to approve an agreement under which Dodgers owner Frank McCourt would sell the team, commented a Boston Bankruptcy Lawyer.

McCourt and Major League Baseball reached a settlement agreement last week. The Dodgers intend to sell the team's television rights separately from the team, a proposal to which Fox strenuously objects, agreed a Wilmington Bankruptcy Lawyer.

McCourt has not spoken publicly since the settlement was announced, but he met with team employees at Dodger Stadium on Tuesday.

Speaking in front of hundreds of staff members, McCourt said he never thought his personal life would affect the club as much as it did, according to people at the meeting. McCourt was described as remorseful, reportedly telling employees that he wished he had taken better care of what he had.

Former commissioner Peter Ueberroth, who previously led groups that bid on the Dodgers and Angels, said Tuesday he would not pursue the Dodgers during the current sale process. Ueberroth is perhaps best known as chief of the highly successful 1984 Los Angeles Olympics.

In a court hearing Tuesday, Fox attorney Paul Laurin expressed concern over reports that he said characterized the settlement between McCourt and MLB as a foregone conclusion.

Although the judge has reviewed the deal points with attorneys representing McCourt and MLB, he said a final settlement has yet to be submitted or approved.

The Dodgers' current television contract prevents the team from negotiating with any party besides Fox through Nov. 30, 2012. The settlement agreement targets April 1 as a date for completion of a Dodgers sale.

The Dodgers said in a statement Monday that they soon would submit an amended media rights procurement motion to the court.

However, the settlement agreement between McCourt and MLB calls for one auction, not two, with a decision on the television rights left to the new owner, according to a person involved in drafting the settlement.

A Sydney Divorce Lawyer said that the agreement is explicit.

In court papers, McCourt and his attorneys have argued that a television rights auction would benefit the Dodgers in the event of a sale, for they could fetch a higher price given the certainty of long-term media revenue. The league's media consultant, former NBA TV president Ed Desser, said the Dodgers might command 10% to 20% more in a television rights sale if they wait a year or two."

Fox has sued to enforce the current contract. Laurin suggested Tuesday that the money Fox could win in a lawsuit might be so large as to make it difficult for McCourt and MLB to fulfill promises to repay all creditors in full.

McCourt's attorneys have said the Dodgers could simply honor the two years remaining under the current contract and called it unlikely that Fox Sports can assert any meaningful damages. A Tampa Divorce Lawyer agreed.

Jefferson County Seeks Bankruptcy Protection

Story first appeared in Bloomberg News

The big surprise isn’t that Jefferson County, Alabama, filed for bankruptcy protection from creditors, but that the county was able to stave off the inevitable for so long.
A Paris Bankruptcy Lawyer thought that you have to hand it to the county commissioners. They were intent on doing the right thing, which in the municipal market means doing everything in one’s power to keep the business open and maintain it as a going concern.
In fact, though, the county should have sought protection years ago, and not just from creditors, but from all the bankers, analysts and politicians who have betrayed it. There’s plenty of blame to go around in this one, according to a Houston Bankruptcy Lawyer.
Maybe now Jefferson County will get some much-needed help. All those who have created and abetted this disaster, at least the ones not already in jail, will get some castigation, perhaps in the form of a sternly worded remonstrance from the federal bench.
The county needs help. What nobody needs right now is anyone declaring that Jefferson County is somehow a harbinger, or emblematic of all that’s wrong with the municipal market.
Hogs to Trough
No way. Jefferson County, like all municipal-market catastrophes, is particular and specific. There aren’t a barrelful of other municipalities out there just like Jefferson County. No, Jeffco, as its friends call it, is a case study all by itself, agreed a Sacramento Bankruptcy Lawyer.

Public finance has a prominent role in the largest municipal bankruptcy in U.S. history. And to be sure, Wall Street will pay and pay and pay for its part in this mess. Yet please keep in mind that the county and its leaders are the real culprits here.
What happened? The county agreed to clean up its sewer system. Then it let things get out of hand, and so a cleanup at first estimated at a couple of hundred million dollars eventually cost more than $3 billion. The hogs rushed the trough.
The proximate cause of the Jeffco bankruptcy wasn’t the big series of bond sales or even the insane swaps strategy pursued by the county. The thing that pushed it over the edge was a court ruling that invalidated a wage tax that generated one- quarter of the Jeffco general fund.
You can spend hours debating who’s to blame. What’s next?
That’s very hard to say agreed a Wilmington Bankruptcy Lawyer. Municipal bankruptcy is uncharted territory unless you’re dealing with things like rural utility districts and the like -- in other words, “municipalities” in name only, with few people, which are settled in an almost formulaic manner. Every bankruptcy by a city or county is going to be different. Jefferson County is not the city of Vallejo or Orange County, California.
The county commissioners sounded almost relieved after they voted to file for bankruptcy, as if it somehow represented the end. To paraphrase Winston Churchill, this isn’t the end. It isn’t even the beginning of the end. But it is the end of the beginning, and for that all market participants should be thankful, I guess.
“The people of Jefferson County have had enough,” the Commissioner is quoted as saying just before the meeting where commissioners voted for bankruptcy.
Enough? County residents’ woes are only beginning. He doesn’t think the series of remarkable concessions wrested from creditors in a settlement proposed in September -- including a scalping rather than a haircut on debt -- are still going to be on offer.
A Cherry Hill Bankruptcy Lawyer doesn’t think a federal bankruptcy judge is going to provide absolution of all that debt, or of future, and gigantic, sewer rate increases. There are hard times ahead for Jefferson County.
But it’s Jefferson County, not all counties, and not all municipalities, and don’t let anyone tell you otherwise.

Workers Sue For Bonuses

Story first appeared in Bloomberg News

Ingersoll Rand is set to go to trial today in a lawsuit over how much it owes to 130 employees who claim they deserve bonuses under an incentive plan tied to the company’s sale in 2004 of Dresser-Rand Group Inc. (DRC)

Workers sued in federal court in Newark, New Jersey, where they seek payment under a sales incentive plan dated September 2000. Jurors will weigh whether Ingersoll Rand owes $11 million, as the company claims, or $72 million, as workers seek. Workers say the judge can add interest of at least $25.5 million.

Ingersoll Rand, which makes heating and ventilation equipment, offered the bonuses when it began trying to sell Dresser-Rand, which makes compressors and turbines. After Dresser-Rand was sold in 2004 for $1.2 billion, Ingersoll Rand said the 2000 plan no longer applied. Workers sued, and a federal judge ruled the plan remains in effect, setting up the trial.

A Memphis Employee Rights Lawyer felt this is a classic example of overgrab by corporate America at the expense of the people who do the work.

Some of the best-known U.S. trial lawyers will be in the courtroom. Barry Ostrager of Simpson Thacher & Bartlett LLP in New York, who has represented J.P. Morgan Chase & Co., Swiss Re Ltd., and many other companies, will defend Ingersoll Rand.

Merck, Clemens

Lanier, who won verdicts against Merck & Co., Caterpillar Inc., and other companies, will be joined by Rusty Hardin. He has represented former Major League Baseball pitcher Roger Clemens and Arthur Andersen LLP, the now-defunct accounting firm convicted of obstructing a government investigation into Enron Corp. The Supreme Court overturned that verdict.

Workers eligible for the payouts were allotted “sale value units” tied to the net price of the Dresser-Rand transaction. Ingersoll Rand claims the 704,196 units at issue in the trial are each worth $16.18, while workers sale they are worth $102.74.

Penn State May Seek Immunity After Years of Skirting Public Laws

Story first appeared in the Bloomberg News.

Pennsylvania State University, after years of skirting public-school rules, may claim protection from liability under commonwealth statutes that shield government entities, if it faces lawsuits related to a child-sex scandal.

Moody’s Investors Service is examining the school’s relationship with the state to see if claims of sovereign immunity may apply, analysts said yesterday. Fallout from charges against an assistant led to the dismissal of Joe Paterno, Penn State’s marquee football coach, and its president.

While Penn State is the commonwealth’s flagship state- supported school, it has successfully asserted claims to be exempt from freedom- of-information laws that apply to most public institutions including many of its competitors, such as Ohio State University and the University of Texas. Penn State’s unusual position has for years shielded it from public scrutiny, including inquiries into its football program.

This most recent scandal is an unprecedented development in many areas of liability risk, it may not be clear even to Penn State what the situation is. Many legal issues need to be decided by corporate counsel and possibly the state and federal courts.

Jerry Sandusky, the former assistant coach, faces charges of sexually abusing boys as young as 10 at the school. In addition to Joe Paterno, 84, college football’s most successful coach, with 409 wins, the scandal also claimed the job of President Graham B. Spanier, 63. Both were fired by Penn State on Nov. 10, 2011.

Defendant Denies Accusations

The charges against Sandusky involve alleged assaults on eight boys from 1994 to 2009, when he ran The Second Mile, a charitable children’s organization, according to Pennsylvania Attorney General Linda Kelly. Sandusky, 67, denied the accusations against him in a telephone interview Nov. 14 with Bob Costas of NBC News.

The unviersity's credit rating may be cut in the wake of the sex scandal rocking the university, New York-based Moody’s said last week in a report. It cited the potential for lawsuits, settlements, and declines in philanthropic and state support, as well as “significant management and governance changes.”

Penn State University traces its roots to 1855 when it was started as a private agricultural college, and 1863, when the Legislature made it the state’s only land-grant institution.

State Funding

Since 1887, Penn State has received annual appropriations from the Pennsylvania Legislature, even though it remained a privately chartered organization, according to its website. The university describes itself as “not state-owned and -operated” yet with the “character” of a public school as a “state-related” institution.

In March, Penn State University cited a decline in state funding as leading to tuition increases, including in the discounted rate for Pennsylvania residents. The school has more than 80,000 students attending classes on more than 20 campuses statewide.

While it gets financial support from the commonwealth, Penn State is set apart from its higher-education system.

The University of Pittsburgh, as well as Temple University and Lincoln University, both in Philadelphia, are also state-related schools.

Penn State doesn’t use government or tuition money to fund its athletics programs, which it describes on its website as “an auxiliary enterprise” that is “self-supporting.” The school, with an operating budget of about $4.1 billion a year, sought $364.2 million in state support for fiscal 2012.

Liability Shields

Some states have strict liability-limiting statutes that protect government agencies against lawsuits, in contrast to private nonprofit organizations. Whether such laws apply to Penn State wasn’t immediately clear to Moody’s analysts.

Moody's declined to provide specifics citing that they are not lawyers and so Moody's declined to answer the questions.

Some Penn State employees are covered by the State Employees’
Retirement System, a public pension. Sandusky got almost $150,000 in a lump-sum payment when he retired and has been receiving almost $59,000 a year since then, according to a spokeswoman for the plan.

Penn State’s debt is graded Aa1, the second-highest Moody’s rating, because of strong student demand and other credit strengths linked to its status as Pennsylvania’s flagship and land-grant university. Penn State has about $1 billion of rated debt outstanding, with many lawsuits on the short-term horizon.

Will Kilpatrick get to keep his book profits?

Story first appeared in the Detroit Free Press

Former Detroit mayor Kwame Kilpatrick is asking the Michigan Supreme Court to halt prosecutors’ plans to claim profits from Kilpatrick's memoir to help pay off his restitution debt.
His attorney, in a motion filed late Monday, said a hearing Wednesday before Wayne County Circuit Judge violates Kilpatrick’s right of free speech and actually is undermining the state’s goal of recovering restitution.
The lawyer ordered Creative Publishing Consultants into court Wednesday to explain why no money from sales of “Surrendered: The Rise, Fall & Revelation of Kwame Kilpatrick” has gone into an escrow account to offset his debt of $860,702.60.
According to earlier filings, the publishers cleared $19,258.54 on sales of $56,487.54.
If prosecutors prevail, it could cut off book sales that could help pay down the debt and lectures that help support his family
He wants the hearing put on hold until the high court hears and rules on his claim.
Michigan's version of the so-called Son of Sam Law — aimed at stopping criminals from profiting by selling their stories — has not been tested and is contrary to the U.S. Constitution.
A state appellate panel rejected Kilpatrick’s motion in September.
The Wayne County Prosecutor’s office said it hasn’t gotten a copy of the latest appeal and cannot comment.