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Court Leaves Diabetes Drug Case Intact
Law News |
2008/03/03 19:19
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| A divided Supreme Court is leaving intact a ruling favoring people who sued a pharmaceutical company, saying they had been harmed by a drug to combat diabetes.pThe dispute stems from several suits against Warner-Lambert over its diabetes drug Rezulin. Warner-Lambert is now owned by Pfizer. The Supreme Court split 4-4 in the case, with Chief Justice John Roberts not participating./ppThe users of the drug are relying on a Michigan law to allege that the pharmaceutical company engaged in fraud by misleading federal regulators to get the drug approved. The Michigan law shields pharmaceutical companies from product liability lawsuits, unless they committed fraud./ppAt issue in the case is whether that fraud exception, which allows lawsuits to proceed, is pre-empted by federal regulation of the pharmaceutical industry./ppThe 2nd U.S. Circuit Court of Appeals in New York ruled that the exception to the Michigan law was not pre-empted by federal regulations, enabling the plaintiffs to pursue the case./ppTwenty-seven Michigan residents say they suffered personal injuries caused by Rezulin, a drug that federal regulators approved despite risks to the liver and cardiovascular system./p |
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Court Looks At Internet Limits
Law News |
2008/03/01 12:24
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pThe dispute over a Burlington, Conn., teenager's Internet journal gave rise on Tuesday to a wide-ranging and contentious federal court hearing about free speech, whether schools can regulate students' language off campus and how the Internet blurs the boundaries of a school campus./ppAvery Doninger, the 17-year-old high school senior at the center of the case, sat in the front row as a three-judge panel of the U.S. 2nd Circuit Court of Appeals lobbed questions at the attorneys. Lawyers for both sides described the hearing as uncharacteristically lengthy and suggested that the duration underscored the case's position in new legal territory./ppIn simplest terms, the hearing Tuesday addressed whether Doninger should be allowed to serve as senior class secretary at Lewis S. Mills High School and, as a class officer, speak at her graduation./ppThe principal had barred Doninger from serving on the student council because of derogatory comments she made about school officials in an Internet blog. A lower court judge denied an injunction that would have allowed her back on the council.
U.S. District Court Judge Mark Kravitz ruled in August that Doninger had not shown a substantial likelihood that she would succeed in challenging the constitutional validity of her principal's decision.
The appeals court did not rule Tuesday, but the judges raised questions ranging from the specifics of the high school's student council election procedures to how the Internet changes students' rights to free speech.
The attorneys staked out opposite positions on the free-speech question.
Asked whether schools should be allowed to regulate anything students write on the Internet, Doninger's attorney, Jon L. Schoenhorn, argued that the Internet should not give schools more cause to regulate off-campus speech. It's just a bigger soapbox, he said.
The school officials' attorney, Thomas R. Gerarde, argued that the Internet has fundamentally changed students' ability to communicate, allowing them to reach hundreds of people at a time. If a student leader makes offensive comments about the school on the Internet, the school should have the right to act, said Gerarde, who represents Mills Principal Karissa Niehoff and former Region 10 Superintendent Paula Schwartz. We shouldn't be required to just swallow it, he said.
Doninger's case began with a dispute about the school's annual Jamfest, a battle-of-the-bands-type program that Doninger had helped coordinate. Frustrated that Jamfest was not going ahead as scheduled, Doninger wrote on her livejournal.com weblog that Jamfest is canceled due to the douchbags [sic] in central office. She also encouraged others to write or call Schwartz to piss her off more, and included an e-mail her mother wrote as an example.
In fact, Jamfest wasn't canceled and was rescheduled. After administrators found the blog entry, about two weeks after Doninger wrote it, Niehoff told Doninger to apologize to Schwartz, show her mother the blog entry and remove herself from seeking re-election as class secretary.
Doninger agreed to the first two, but refused to withdraw her candidacy. Administrators did not allow her to run, though enough students wrote her name on the ballot that she won. She was not allowed to serve.
In his August ruling, Kravitz suggested that while Doninger wrote her blog entry off school grounds, she could be punished for it because the blog addressed school issues and was likely to be read by other students.
The issue of on-campus and off-campus speech was a key theme Tuesday as attorneys and judges grappled with how the existing legal framework for school-speech issues applies to the Internet.
Student-speech issues have long been governed by a 1969 U.S. Supreme Court case. It established that disruptive conduct by students is not constitutionally protected, but that schools can prohibit expression only if they can show that not doing so would interfere with schoolwork or discipline.
A 1986 Supreme Court ruling added another cause for schools to regulate speech, allowing them to prohibit vulgar and lewd speech if it would undermine the school's basic educational mission. em class=b/em
em class=b/emBut those cases involved speech that took place on school grounds or during a school activity.
Much of the discussion Tuesday involved another 2nd Circuit Court of Appeals case, Wisniewski v. Board of Education of the Weedsport Central School District in a title=New York State href=http://www.courant.com/topic/us/new-york-state-PLGEO100100800000000.topicNew York/a. A student was suspended after he created an instant-messaging icon, visible to his friends, that suggested his English teacher should be shot. The court upheld the suspension last year, saying it was reasonable to expect that the icon would come to the attention of school authorities and could create a risk of substantial disruption to the school environment.
Gerarde, the school officials' attorney, argued that the Wisniewski case extended the boundaries of school discretion to the Internet and allowed Lewis Mills to sanction Doninger's blog, which he said was as potentially disruptive as the Wisniewski case.
Doninger's post caused administrators to receive numerous telephone calls and e-mails — including offensive ones, according to court records — and prompted students to consider staging a sit-in. That forced Schwartz to disrupt a presentation she had been scheduled to make to a visiting Chinese delegation.
Gerarde said speech off campus can affect the school. But Judge Sonia Sotomayor challenged his argument, noting that Pedagogical rights can't supersede the rights of students off campus to have First Amendment rights.
Schoenhorn, Doninger's attorney, offered a different interpretation of the Wisniewski case. The suspension was allowed in that case not because the Internet could be considered on-campus, but because the student's behavior clearly created a risk of disruption, something the school would be able to regulate under the 1969 Supreme Court ruling. In Doninger's case, he said, there was no similar risk of disruption, particularly by the time administrators found the blog post.
The judges asked several questions about the implications of each attorney's views on schools' regulating Internet speech.
If students are free to say offensive things about administrators on their home computers, chaos will rule, Judge Loretta Preska told Schoenhorn.
They already say offensive things about their teachers, Schoenhorn replied, noting that whole websites are devoted to rating teachers.
Sotomayor asked Gerarde how far school regulation of Internet speech could go. What if a student made false and offensive posts about the mayor and then wanted to run for student council, he asked. Would a principal be able to bar the student from running because she had not shown good citizenship?
Gerarde said it would depend on how likely it was that the school administration would see the blog. But Sotomayor said that would suggest the consequences would be related to how active a student was.
Gerarde posed another situation: What if a class president drove a mile off campus and e-mailed vulgar comments about the principal to hundreds of students? Should the student be able to say he's off campus and the school can't do anything about it? That's wrong, Gerarde said.
If vulgar speech relates to the school or a public event, the school should be able to regulate it, Gerarde said.
/p |
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Law firm violated debt collection statute, federal suit alleges
Law News |
2008/03/01 12:22
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Pauline Sumowski filed suit in federal court Feb. 27, alleging the law firm Baker, Miller, Markoff amp; Krasny, LLC of Chicago violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, when trying to collect a debt owed by her deceased husband.
According to the complaint filed in U.S. District Court for the Southern District of Illinois, Al Sumowski opened a consumer credit card account with Discover Bank roughly 30 years ago and was the only authorized user on the account.
Sumowski claims that 10 years after her husband's death in 1990, Discover began sending billing statements directly to her demanding payment on the account.
Mrs. Sumowski assumed that she was somehow liable for the Discover account and accordingly, she tried her best to make payments on it, the complaint states.
When Mrs. Sumowski began having trouble paying some of her debts in 2006, due to increased family and household expenses, she was unable to make any further payments to Discover.
She claims that after missing payments, the Baker firm, on behalf of Discover, filed suit against her in Madison County on March 5, 2007, despite the fact that the debt is not owed by her.
Sumowski claims she was forced to hire an attorney and learned that she was not liable for the Discover account owed by her late husband.
According to Sumowski, the Baker firm attached a purported affidavit along with purported terms and conditions for the account that the firm claimed formed the basis of the original contract between Sumowski and Discover.
That generic agreement, however, is incomplete, is dated several years after the alleged account at issue was opened, and thus, is not the agreement that governs the account at issue, the complaint states. In fact, no evidence of any signed agreement between Mrs. Sumowski and Discover was attached to the State Court Lawsuit.
Sumowski also claims none of the billing statements that were offered as exhibits contained any new charges but only contained a demand for payment of a past due balance, late fees, penalties and credit protection services.
She claims the day her case was scheduled for trial, the Baker firm dismissed the suit.
According to Sumowski, the Baker firm violated the Fair Debt Collection Practices Act by:
liFalsely claiming that she owed the alleged Discover debt;
liFalsely claiming that the account agreement attached to the complaint was a contract between Discover and herself;
liFalsely stating in a sworn affidavit attached to the complaint that Discover's business records had been reviewed and confirmed that she owed a balance to Discover; and
liFiling a lawsuit against her on a time-barred debt.
Represented by David J. Philipps and Bonnie C. Dragotto of Palos Hills, Sumowski is seeking a judgment for actual and statutory damages, costs and reasonable attorneys' fees. The case has been assigned to District Judge Michael Reagan.
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U.S. Appeals Court sets deadlines in Peel case
Law News |
2008/02/08 11:16
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The U.S. Court of Appeals for the Seventh Circuit in Chicago allowed Gary Peel's federal public defender to withdraw from his case.
The Seventh Circuit appointed Paul Camarena of Chicago to replace Stephen Williams of the East St. Louis federal public defender's office on Jan. 25, after Williams filed a motion to withdraw just before Christmas.
Before the appeals court would allow Williams to withdraw, it ordered him to gather all of the transcripts of Peel's trial from Stiehl's court reporter Daveanna Ramsey.
Peel filed his notice of appeal of his final judgment and sentence to the Seventh Circuit on Dec. 4.
He was sentenced to 12 years in prison by U.S. District Court Judge William Stiehl on Nov. 19. He was technically sentenced to 37 years, but Stiehl ordered the time to be served concurrently.
Peel, 63, was convicted on one count of obstruction of justice, one count bankruptcy fraud and two counts of child pornography by a federal jury in East St. Louis on March 23. He was also fined $1,000 and placed on three years supervised release.
Peel was prosecuted for blackmailing his ex-wife Deborah Peel with nude photos taken of her 16-year-old sister in 1974.
He and Deborah Peel were married in 1967 and divorced in 2003. During contentious settlement proceedings Gary Peel filed for bankruptcy in 2004.
At trial, prosecutors told jurors that Peel threatened to bankrupt his ex-wife in legal fees if she did not stop trying to get a deposition of his current wife, Deborah A. Pontious-Peel.
Assistant U.S. Attorney Kevin Burke told the jury that Peel planned to send the nude photos to Deborah Peel's parents if she did not agree to a new divorce settlement.
The Seventh Circuit also set the deadlines for the appeal to be filed.
Peel has to file his written brief and short appendix by April 23. The government has until May 23 to file its brief. If Peel wants to reply to the government's brief, he must submit it no later than June 6.
Peel originally had until Jan. 15 to file his brief, but was allowed more time since Williams withdrew from the case. |
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