Archive for May, 2010

Another Fen Phen case….claims of 50 litigants represented by Angela Ford dismissed due to statute of limitations

Sunday, May 30th, 2010

This is a fen phen case which was filed by some 50 litigants whose cases were transferred from the Ky. fen phen case to another attorney and joined in a class action in Alabama.   This case is different from the Boone County fen phen case which is currently on appeal to the ct. of appeals.

 The litigants claimed they didn’t get as much of a settlement as they thought they should, and sued their Ky. attorney in Fayette County in 2007.   At that time their attorney was Angela Ford who file the original fen phen clients case against Cunningham, Gallion and Mills. 

 

The Ct. of Appeals suggests that Angela Ford, who represents the appellants in this appeal, was involved in the other fen phen litigation and this demonstrates some common knowledge of the claimed wrongs of attorney Austin, and the discovery rule does not defeat the statute of limitations defense, since the appellants were on notice as early as 2005.  

 

This case discusses choice of law issues and “the borrowing statute”.

 

The trial court sua sponte dismissed all 50 claims due to statute of limitations.

 

The Ct. of Appeals upheld the trial courts dismissal.

 

LawReader subscribers can read the complete synopsis. 

 

For full text of case click case number  2009-CA-000465

 

LAWREADER SYNOPSIS:

 

Court of Appeals

NO. 2009-CA-000465-MR

BARBARA A. ABEL; AND OTHER

INDIVIDUAL APPELLANTS AS

DESIGNATED IN THE NOTICE OF APPEAL APPELLANTS

 

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE PAMELA R. GOODWINE, JUDGE

ACTION NO. 07-CI-05178

 

J. BRENT AUSTIN; LANGSTON,

SWEET AND FREESE, P.A.; AND

BEASLEY, ALLEN, CROW, METHVIN,

PORTIS & MILES, P.C. APPELLEES

 

OPINION AFFIRMING

** **

 

 

LawReader synopsis # 1 TO BE PUBLISHED  COLLATERAL FEN PHEN CASE DISMISSAL UPHELD – STATUTE OF LIMITATIONS WARRANTED SUMMARY JUDGMENT – ANGELA FORD IS CITED AS APPELLANT’S ATTORNEY

 

This lawsuit derives from the infamous diet drug fen-phen litigation.

 

This group of plaintiffs, who are the appellants herein, had been referred by Cunningham and other counsel in the Moore case to the appellee trial counsels for the Stevens case. Afterward, they were included in the settlement of the Stevens case, which is the previously mentioned Alabama fen phen case.

 

Appellants then filed suit in Fayette Circuit Court on October 31, 2007. They claim that the date of this filing is within the one-year statute of limitations because it falls within one year of the actual discovery of the injury.

 

, the trial court issued its order, which held that Clore’s claims, specifically, and the other plaintiffs’ claims, generally, were time-barred.

 

In sum, they contend that the law firms failed to provide them with necessary information about the aggregate settlement resulting in each appellant’s not receiving the additional $18,443.84. But the issue on appeal is whether the limitations period bars the claim.

 

he provided information that in late 2004 and early 2005, Angela M. Ford, appellants’ attorney, filed lawsuits against Cunningham, Gallion, and Mills alleging that these attorneys stole millions of dollars from their former clients.

 

it is significant to note that a trial court has the authority to grant summary judgment in favor of a non-moving party “where overruling the [movant's] motion for summary judgment necessarily would require a determination that the [non-moving party was] entitled to the relief asked, [and] a motion for summary judgment by the [non-moving party] would have been a useless formality

 

When a cause of action has arisen in another state or country, and by the laws of this state or country where the cause of action accrued the time for the commencement of an action thereon is limited to a shorter period of time than the period of limitation prescribed by the laws of this state for a like cause of action, then said action shall be barred in this state at the expiration of said shorter period.

 

KRS 413.320 mandates that, if the other state’s limitations statute is shorter, it is to be applied

 

While it is true that the borrowing statute is triggered only when the cause of action accrued in another jurisdiction, a cause of action accrues where the breach of duty occurs

U.S. Supreme Court Toughens Standards for Consideration of Plain Error Rule.

Tuesday, May 25th, 2010

 

 2nd. Circuit Court had ruled that “whenever there exists ‘any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct,” a new trial was justified.   The Supreme Court reversed that standard and held that the error must be sufficiently weighty to affect ‘substantial rights.

 

Mark Hamblett New York Law Journal   May 25, 2010

 

A man whose conviction for sex trafficking and forced labor was overturned by the 2nd U.S. Court of Appeals did not win as favorable a result before the U.S. Supreme Court.

The 2nd Circuit found in 2008 that the mere possibility that a jury attributed conduct to defendant Glenn Marcus that occurred before the enactment of the Trafficking Victims Protections Act of 2000 meant a violation of the Constitution’s ex post facto clause, and it ordered a new trial for Marcus.

On Monday, however, the U.S. Supreme Court ruled the 2nd Circuit’s approach “cannot be reconciled” with Supreme Court case law on ordering reversal under the “plain error standard,” in United States v. Marcus (pdf), No. 08-1341.

The Court reversed by a vote of 7-1 and instructed the circuit court to revisit the case and apply the correct standard.

Justice Stephen Breyer delivered the opinion of the Court and Justice John Paul Stevens dissented. Justice Sonia Sotomayor did not take part because she was part of the original 2nd Circuit panel to have decided the Marcus appeal, along with 2nd Circuit Judges Chester J. Straub and Richard C. Wesley.

Marcus was convicted in the Eastern District of New York in 2007 of violating the sex trafficking and forced labor provisions of the act after prosecutors presented evidence of conduct between January 1999 and October 2001.

The conduct, according to court papers, involved meeting a woman named “Jodi” in an Internet chat room devoted to bondage, convincing her to become one his “slaves,” and having her move into his Maryland apartment. Once in the apartment, Marcus engaged in sadomasochistic activities with Jodi and other “slaves,” — he branded her, required her to obtain permission to contact her family, posted pictures of her on his website, and required to her to post a diary of her experiences.

In October 1999, he handcuffed her to a wall and, when she said she wanted to leave, he punished her and posted photos of the punishment on the Web site. He later forced her to move to New York and work more than eight hours a day creating and managing his website “Slavespace.”

Marcus was sentenced to serve nine years in prison.

On the appeal, the prosecution argued that there was a “remote possibility” that the jury could have convicted Marcus purely on conduct that preceded the October 2000 enactment of the Trafficking Victims Protections Act, but the circuit should nonetheless affirm because he was engaged in a continuing course of conduct.

Prosecutors also noted that Marcus did not raise an objection to Judge Allyne Ross’s failure to instruct the jury with regard to the date of the law’s enactment.

Nonetheless, the circuit said that under its own precedents “a retrial is necessary whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.”.

On Monday, in reversing the circuit, Breyer said Rule 52(b) of the Federal Rules of Criminal Procedure allows appellate courts to recognize a plain error even where it was not brought to the district court’s attention.

The courts can do so, he said, where there is a “clear or obvious error” that “affected the appellant’s substantial rights” and “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Breyer said the 2nd Circuit’s approach, which “would notice a plain error and set aside a conviction whenever there exists ‘any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct,’ is irreconcilable with our ‘plain error’ approach.”

Breyer said the Supreme Court has noted in the past that certain “structural errors” might “affect substantial rights” regardless of their impact on an appellant’s trial.

And while he agreed that Ross could have minimized or eliminated this risk with a proper instruction for the jury, that does not mean, as Marcus argued, that her error was “structural.”

“We see no reason why, when a judge fails to give such an instruction, a reviewing court would find it any more difficult to assess the likely consequences of that failure than with the numerous other kinds of instructional errors that we have previously held to be non-’structural’ — for example, instructing a jury as to an invalid alternative theory of guilt,” he said.

The Court remanded for consideration of whether the case meets its “plain error” standard.

In his dissent, Stevens said, “The question under Federal Rule of Criminal Procedure 52(b) is whether the trial error was sufficiently weighty to affect ‘substantial rights,’ and in my view the error surely was.”

Marcus, who has remained in jail since his 2007 conviction, was represented by Herald Price Fahringer.

Fahringer said the result could have been better, but it could have been worse, and he said his client is in a favorable position when the 2nd Circuit takes up the plain error analysis because the government “conceded error in the sexual aspect of the case, recognizing they put in a great deal of evidence from the period before the statute was enacted.”

Fahringer said that, “procedurally, this has wide ramifications because so many people invoke plain error” when an objection has not been properly preserved below.

Eric D. Miller, assistant to the U.S. solicitor general, argued for the government.

GOV. SIGNS BILL TO GIVE PREFERENCE TO IN-STATE BIDDERS ON STATE CONTRACTS

Monday, May 24th, 2010

GOV. SIGNS BILL TO GIVE PREFERENCE TO IN-STATE BIDDERS ON STATE CONTRACTS

FRANKFORT, Ky. –  Gov. Steve Beshear on April 26th. signed into law legislation that will provide Kentucky-based businesses a level playing field with out-of-state vendors as they compete for Kentucky state government contracts.

“This bill will go a long way toward leveling the paying field for Kentucky businesses,” said Gov. Beshear.  “In these tough economic times, we must use every tool available, including this new law, to allow Kentucky businesses to earn valuable contracts that keep Kentuckians working.”

Senate Bill 45, sponsored by Sen. Gary Tapp, requires Kentucky’s public contracting agencies, in determining procurement awards, to give preference to in-state bidders against out-of-state bidders, equal to the preference given to those out-of-state bidders when they bid on contracts in their home state.

“Senate Bill 45 is an important step to better protect Kentucky businesses,” said Sen. Tapp.  “The measure will level the playing field for Kentucky businesses bidding for state contracts.”

Once the new legislation is enacted, if the low bidder for a government contract is from a state that grants a 10 percent preference to its own in-state bidders, then Kentucky-based businesses will receive a 10 percent preference against that out-of-state bidder.  With the enactment of this legislation, Kentucky joins 35 other states that have similar legislation.

“As Kentucky families and businesses continue to endure this time of recession, it is essential that our state’s businesses are competitive in bidding for new contracts,” said Jonathan Miller, secretary of the Finance and Administration Cabinet.  “More work results in new or retained jobs and a boost for our Commonwealth’s economy,”

  

 

SB 45 (BR 405) – G. Tapp

     AN ACT relating to state contracting practices.
     Create a new section of KRS Chapter 45A to give preference to Kentucky resident bidders in state construction contracts; require this preference to apply against a nonresident bidder registered in any state that gives or requires a preference to bidders from that state; specify that this preference is equal to the preference given or required by the state of the non resident bidder; include determination of the amount of the preference; define “resident bidder”; require the Finance and Administration Cabinet to promulgate administrative regulations on the process for establishing residency and listing states with a bid preference in place, including the amount of that preference; amend KRS 45A.070 to redefine “best value” to include the requirement to communicate the preference in the invitation for bids; amend KRS 45A.085, 45A.090, 45A.180, and 45A.182 to conform; amend KRS 162.070 to include the preference for a resident bidder in accepting bids for secondary school construction contracts; amend KRS 164A.575 to add that “best value” shall be determined in accordance with KRS 45A.070 for postsecondary school capital construction contracts.

SB 45 – AMENDMENTS


     SCS – Retain original provisions, except add the term “qualified” to construction contract and define the term to clarify that the preference for resident bidders applies only to government contracts; add that the preference applies prior to the evaluation of bids; delete language on the computation of the preference of adding the percentage of preference to the nonresident bidder’s price when evaluating the bid; add definition of a nonresident bidder; include other business entities under the definitions of resident and nonresident bidder; require preference for a resident bidder in the event of a tie between a resident and nonresident bidder; clarify that a bidder may only have one principal place of business; include what place shall be considered as the bidder’s principal place of business; remove the requirement that the Finance and Administration Cabinet regulate the process of how to become a resident, but retain the requirements that the cabinet maintain a list of states with preferences and the extent of those preferences.

     SFA (1, G. Tapp) – Require that one year prior to an advertised bid a resident bidder has filed Kentucky corporate income taxes, has made payments to the Kentucky Unemployment Insurance Fund, and has a Kentucky workers’ compensation policy in effect; delete provisions regarding a bidder’s principal place of business.

     HCS – Retain original provisions of the bill, but expand reciprocal resident bidder preference to all contracts entered into by a public agency; create a new section of KRS Chapter 45A to define “contract” and “public agency”; create a new section of KRS Chapter 45A setting out the purpose of providing a reciprocal resident bidder preference; create a new section of KRS Chapter 65 to require local governments to apply the reciprocal resident bidder preference to all contracts; create a new section of KRS Chapter 160 to require local school boards to apply the reciprocal resident bidder preference to all contracts; create a new section of KRS Chapter 176 to require reciprocal resident bidder preference for highway construction contracts; amend KRS 45A.365, 45A.370, 45A.375, 45A.695, 45A.745, 45A.825, 45A.853, 164A.575, 164A.590, and 176.010 to comply; repeal KRS 45A.873.

     HCA (1/Title, M. Cherry) – Make title amendment.

     HFA (1, S. Santoro) – Retain original provisions except delete the portion of the definition of “resident bidder” that requires at least 51 percent of its property and payroll to be located in Kentucky.

     CCR – Cannot agree.

     FCCR – Retain original provisions except delete requirement that a resident bidder is required to have 51 percent of its property and payroll located in the Commonwealth; amend KRS 45A.470 to notwithstand other provisions of the chapter and specify that first preference in purchasing commodities or services shall be given to products produced by the Kentucky Industries for the Blind.

     (Prefiled by the sponsor(s).)

     Jan 5-introduced in Senate
     Jan 6-to State & Local Government (S)
     Jan 20-reported favorably, 1st reading, to Calendar with Committee Substitute
     Jan 21-2nd reading, to Rules
     Jan 26-floor amendment (1) filed to Committee Substitute
     Jan 27-posted for passage in the Regular Orders of the Day for Thursday, January 28, 2010
     Jan 28-3rd reading, passed 38-0 with Committee Substitute, floor amendment (1)
     Feb 1-received in House
     Feb 8-to State Government (H)
     Feb 23-posted in committee
     Feb 25-reported favorably, 1st reading, to Calendar
     Feb 26-2nd reading, to Rules
     Mar 3-recommitted to State Government (H)
     Mar 11-reported favorably, to Rules as a Consent bill with Committee Substitute, committee amendment (1-title)
     Mar 12-posted for passage in the Consent Orders of the Day for Monday, March 15, 2010
     Mar 15-taken from the Consent Orders of the Day, placed in the Regular Orders of the Day; floor amendment (1) filed to Committee Substitute
     Mar 23-3rd reading, passed 98-0 with Committee Substitute, committee amendment (1-title) ; received in Senate
     Mar 29-posted for passage for concurrence in House Committee Substitute, committee amendment (1-title) ; Senate refused to concur in House Committee Substitute, committee amendment (1-title) ; Members appointed to pending conference committee; received in House; Members appointed to pending conference committee
     Apr 1-House refused to recede from Committee Substitute, committee amendment (1-title) ; Conference Committee appointed in House and Senate; Conference Committee report filed in House and Senate; Conference Committee report adopted in House and Senate; Free Conference Committee appointed in House and Senate; Free Conference Committee report filed in House and Senate; Free Conference Committee report adopted in House; Bill passed 95-0; received in Senate
     Apr 14-Free Conference Committee report adopted in Senate; Bill passed 37-0; enrolled, signed by President of the Senate
     Apr 15-enrolled, signed by Speaker of the House; delivered to Governor
     Apr 26-signed by Governor (Acts ch. 162)

 

U.S. SUPREME COURT ALLOWS DANGEROUS SEXUAL PREDATORS TO BE HELD IN JAIL AFTER SERVING SENTENCE

Monday, May 24th, 2010

.S. SUPREME COURT ALLOWS DANGEROUS SEXUAL PREDATORS TO BE HELD IN JAIL AFTER SERVING SENTENCE

 

Monday, May 24, 2010

Sexually-violent predators can remain held in prison after serving their sentences if the government provides “clear and convincing” evidence that the individuals remain a threat to society, according to a new ruling from the U.S. Supreme Court.

 

In a 7-2 decision last week, the court upheld the Adam Walsh Child Protection and Safety Act which Congress and President George W. Bush agreed to implement in 2006.

 

The law was designed to give prison authorities the power to indefinitely hold rapists and molesters suffering from mental illness following the conclusion of their sentences as handed down by the courts. The two Supreme Court justices who dissented in the opinion were conservatives Clarence Thomas and Antonin Scalia.

 

The case overturned a decision by the Fourth Circuit Court of Appeals which found Congress had overstepped its authority in passing the law. Five prisoners had challenged the constitutionality of the law. Four of them were detained more than two years after their sentences were complete because they had been deemed sexually dangerous less than one month before their scheduled releases.

 

OCTOBER TERM, 2009

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

 

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. COMSTOCK ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08–1224. Argued January 12, 2010—Decided May 17, 2010

Federal law allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date hewould otherwise be released. 18 U. S. C. §4248. The Government instituted civil-commitment proceedings under §4248 against respondents, each of whom moved to dismiss on the ground, inter alia, that, in enacting the statute, Congress exceeded its powers under the Necessary and Proper Clause, U. S. Const., Art. I, §8, cl. 18. Agreeing,the District Court granted dismissal, and the Fourth Circuit affirmed on the legislative-power ground.

Held: The Necessary and Proper Clause grants Congress authority sufficient to enact §4248. Taken together, five considerations compel this conclusion. Pp. 5–22.

(1) The Clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. It makes clear that grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the enumerated power’s “beneficial exercise,” e.g., McCulloch v. Maryland, 4 Wheat. 316, 413, 418, and that Congresscan “legislate on that vast mass of incidental powers which must beinvolved in the constitution,” id., at 421. In determining whether the Clause authorizes a particular federal statute, there must be “meansends rationality” between the enacted statute and the source of federal power. Sabri v. United States, 541 U. S. 600, 605. The Constitution “addresse[s]” the “choice of means” “primarily . . . to the judgment of Congress. If it can be seen that the means adopted are reallycalculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for 2 UNITED STATES v. COMSTOCK congressional determination alone.” Burroughs v. United States, 290

U. S. 534, 547–548. Thus, although the Constitution nowhere grantsCongress express power to create federal crimes beyond those specifically enumerated, to punish their violation, to imprison violators, toprovide appropriately for those imprisoned, or to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others, Congress possesses broad authorityto do each of those things under the Clause. Pp. 5–9.

(2) Congress has long been involved in the delivery of mentalhealth care to federal prisoners, and has long provided for their civil commitment. See, e.g., Act of Mar. 3, 1855, 10 Stat. 682; Insanity Defense Reform Act of 1984, 18 U. S. C. §§4241–4247. A longstandinghistory of related federal action does not demonstrate a statute’s constitutionality, see, e.g., Walz v. Tax Comm’n of City of New York, 397

U. S. 664, 678, but can be “helpful in reviewing the substance of acongressional statutory scheme,” Gonzales v. Raich, 545 U. S. 1, 21, and, in particular, the reasonableness of the relation between thenew statute and pre-existing federal interests. Section 4248 differs from earlier statutes in that it focuses directly upon persons who, due to a mental illness, are sexually dangerous. Many of these individuals, however, were likely already subject to civil commitment under§4246, which, since 1949, has authorized the postsentence detentionof federal prisoners who suffer from a mental illness and who are thereby dangerous (whether sexually or otherwise). The similarities between §4246 and §4248 demonstrate that the latter is a modestaddition to a longstanding federal statutory framework. Pp. 9–14.

(3) There are sound reasons for §4248’s enactment. The Federal Government, as custodian of its prisoners, has the constitutionalpower to act in order to protect nearby (and other) communities from the danger such prisoners may pose. Moreover, §4248 is “reasonablyadapted” to Congress’ power to act as a responsible federal custodian. United States v. Darby, 312 U. S. 100, 121. Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to “have serious difficulty in refraining from sexually violent conduct,” §4247(a)(6), would pose an especially highdanger to the public if released. And Congress could also have reasonably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federalcustody. Congress’ desire to address these specific challenges, takentogether with its responsibilities as a federal custodian, supports theconclusion that §4248 satisfies “review for means-end rationality,” Sabri, supra, at 605. Pp. 14–16.

(4) Respondents’ contention that §4248 violates the Tenth Amendment because it invades the province of state sovereignty in an area

3 Cite as: 560 U. S. ____ (2010)  

typically left to state control is rejected. That Amendment does not “reserve to the States” those powers that are “delegated to the United States by the Constitution,” including the powers delegated by theNecessary and Proper Clause. See, e.g., New York v. United States, 505 U. S. 144, 159. And §4248 does not “invade” state sovereignty, but rather requires accommodation of state interests: Among otherthings, it directs the Attorney General to inform the States where the federal prisoner “is domiciled or was tried” of his detention, §4248(d),and gives either State the right, at any time, to assert its authorityover the individual, which will prompt the individual’s immediatetransfer to State custody, §4248(d)(1). In Greenwood v. United States, 350 U. S. 366, 375–376, the Court rejected a similar challenge to §4248’s predecessor, the 1949 statute described above. Because the version of the statute at issue in Greenwood was less protective ofstate interests than §4248, a fortiori, the current statute does not invade state interests. Pp. 16–18.

(5) Section 4248 is narrow in scope. The Court rejects respondents’ argument that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step removed from a specifically enumerated power. See, e.g., McCulloch, supra, at 417. Nor will the Court’s holding today confer on Congressa general “police power, which the Founders denied the NationalGovernment and reposed in the States.” United States v. Morrison, 529 U. S. 598, 618. Section §4248 has been applied to only a smallfraction of federal prisoners, and its reach is limited to individuals already “in the custody of the” Federal Government, §4248(a). Thus, far from a “general police power,” §4248 is a reasonably adapted andnarrowly tailored means of pursuing the Government’s legitimate interest as a federal custodian in the responsible administration of its prison system. See New York, supra, at 157. Pp. 18–22.

The Court does not reach or decide any claim that the statute or itsapplication denies equal protection, procedural or substantive dueprocess, or any other constitutional rights. Respondents are free topursue those claims on remand, and any others they have preserved.

P. 22. 551 F. 3d 274, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, GINSBURG, and SOTOMAYOR, JJ., joined. KENNEDY, J., and ALITO, J., filed opinions concurring in the judgment. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined in all but Part III– A–1–b. _________________ _________________ 1 Cite as: 560 U. S. ____ (2010)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.

U.S. SUPREME COURT EXPANDS ATTORNEY FEES TO “EITHER PARTY” IN ERISA ACTION IF SOME DEGREE OF SUCCESS SHOWN ON THE MERITS

Monday, May 24th, 2010

 

HARDT v. RELIANCE STANDARD LIFE INS. CO.

BRIDGET HARDT, PETITIONER,
v.
RELIANCE STANDARD LIFE INSURANCE COMPANY.

No. 09-448.

Supreme Court of United States.

Argued April 26, 2010.    Decided May 24, 2010.

JUSTICE THOMAS delivered the opinion of the Court.

In most lawsuits seeking relief under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., “a reasonable attorney’s fee and costs” are available “to either party” at the court’s “discretion.” §1132(g)(1). The Court of Appeals for the Fourth Circuit has interpreted §1132(g)(1) to require that a fee claimant be a “prevailing party” before he may seek a fees award. We reject this interpretation as contrary to §1132(g)(1)’s plain text. We hold instead that a court “in its discretion” may award fees and costs “to either party,” ibid., as long as the fee claimant has achieved “some degree of success on the merits,” Ruckelshaus v. Sierra Club, 463 U. S. 680, 694 (1983).

I

In 2000, while working as an executive assistant to the president of textile manufacturer Dan River, Inc., petitioner Bridget Hardt began experiencing neck and shoulder pain. Her doctors eventually diagnosed her with carpal tunnel syndrome. Because surgeries on both her wrists failed to alleviate her pain, Hardt stopped working in January 2003.

In August 2003, Hardt sought long-term disability benefits from Dan River’s Group Long-Term Disability Insurance Program Plan (Plan). Dan River administers the Plan, which is subject to ERISA, but respondent Reliance Standard Life Insurance Company decides whether a claimant qualifies for benefits under the Plan and underwrites any benefits awarded. Reliance provisionally approved Hardt’s claim, telling her that final approval hinged on her performance in a functional capacities evaluation intended to assess the impact of her carpal tunnel syndrome and neck pain on her ability to work.

Hardt completed the functional capacities evaluation in October 2003. The evaluator summarized Hardt’s medical history, observed her resulting physical limitations, and ultimately found that Hardt could perform some amount of sedentary work. Based on this finding, Reliance concluded that Hardt was not totally disabled within the meaning of the Plan and denied her claim for disability benefits. Hardt filed an administrative appeal. Reliance reversed itself in part, finding that Hardt was totally disabled from her regular occupation, and was therefore entitled to temporary disability benefits for 24 months.

While her administrative appeal was pending, Hardt began experiencing new symptoms in her feet and calves, including tingling, pain, and numbness. One of her physicians diagnosed her with small-fiber neuropathy, a condition that increased her pain and decreased her physical capabilities over the ensuing months.

Hardt eventually applied to the Social Security Administration for disability benefits under the Social Security Act. Her application included questionnaires completed by two of her treating physicians, which described Hardt’s symptoms and stated the doctors’ conclusion that Hardt could not return to full gainful employment because of her neuropathy and other ailments. In February 2005, the Social Security Administration granted Hardt’s application and awarded her disability benefits.

About two months later, Reliance told Hardt that her Plan benefits would expire at the end of the 24-month period. Reliance explained that under the Plan’s terms, only individuals who are “totally disabled from all occupations” were eligible for benefits beyond that period, App. to Pet. for Cert. 36a, and adhered to its conclusion that, based on its review of Hardt’s records, Hardt was not “totally disabled” as defined by the Plan. Reliance also demanded that Hardt pay Reliance $14,913.23 to offset the disability benefits she had received from the Social Security Administration. (The Plan contains a provision coordinating benefits with Social Security payments.) Hardt paid Reliance the offset.

Hardt then filed another administrative appeal. She gave Reliance all of her medical records, the questionnaires she had submitted to the Social Security Administration, and an updated questionnaire from one of her physicians. Reliance asked Hardt to supplement this material with another functional capacities evaluation. When Reliance referred Hardt for the updated evaluation, it did not ask the evaluator to review Hardt for neuropathic pain, even though it knew that Hardt had been diagnosed with neuropathy after her first evaluation.

Hardt appeared for the updated evaluation in December 2005, and appeared for another evaluation in January 2006. The evaluators deemed both evaluations invalid because Hardt’s efforts were “submaximal.” Id., at 37a. One evaluator recorded that Hardt “refused multiple tests . . . for fear of nausea/illness/further pain complaints.” Ibid. (internal quotation marks omitted).

Lacking an updated functional capacities evaluation, Reliance hired a physician and a vocation rehabilitation counselor to help it resolve Hardt’s administrative appeal. The physician did not examine Hardt; instead, he reviewed some, but not all, of Hardt’s medical records. Based on that review, the physician produced a report in which he opined that Hardt’s health was expected to improve. His report, however, did not mention Hardt’s pain medications or the questionnaires that Hardt’s attending physicians had completed as part of her application for Social Security benefits. The vocational rehabilitation counselor, in turn, performed a labor market study (based on Hardt’s health in 2003) that identified eight employment opportunities suitable for Hardt. After reviewing the physician’s report, the labor market study, and the results of the 2003 functional capacities evaluation, Reliance concluded that its decision to terminate Hardt’s benefits was correct. It advised Hardt of this decision in March 2006.

After exhausting her administrative remedies, Hardt sued Reliance in the United States District Court for the Eastern District of Virginia. She alleged that Reliance violated ERISA by wrongfully denying her claim for longterm disability benefits. See §1132(a)(1)(B). The parties filed cross-motions for summary judgment, both of which the District Court denied.

The court first rejected Reliance’s request for summary judgment affirming the denial of benefits, finding that “Reliance’s decision to deny benefits was based on incomplete information.” App. to Pet. for Cert. 42a. Most prominently, none of the functional capacities evaluations to which Hardt had submitted had “assessed the impact of neuropathy and neuropathic pain on Ms. Hardt.” Ibid. In addition, the reviewing physician’s report “was itself incomplete”; the basis for the physician’s “medical conclusions [wa]s extremely vague and conclusory,” ibid., and the physician had “failed to cite any medical evidence to support his conclusions,” id., at 43a, or “to address the treating physicians’ contradictory medical findings,” id., at 44a. The court also found that Reliance had “improperly rejected much of the evidence that Ms. Hardt submitted,” id., at 45a, and had “further ignored the substantial amount of pain medication Ms. Hardt’s treating physicians had prescribed to her,” id., at 46a. Accordingly, the court thought it “clear that Reliance’s decision to deny Ms. Hardt long-term disability benefits was not based on substantial evidence.” Id., at 47a.

The District Court then denied Hardt’s motion for summary judgment, which contended that Reliance’s decision to deny benefits was unreasonable as a matter of law. In so doing, however, the court found “compelling evidence” in the record that “Ms. Hardt [wa]s totally disabled due to her neuropathy.” Id., at 48a. Although it was “inclined to rule in Ms. Hardt’s favor,” the court concluded that “it would be unwise to take this step without first giving Reliance the chance to address the deficiencies in its approach.” Ibid. In the District Court’s view, a remand to Reliance was warranted because “[t]his case presents one of those scenarios where the plan administrator has failed to comply with the ERISA guidelines,” meaning “Ms. Hardt did not get the kind of review to which she was entitled under applicable law.” Ibid. Accordingly, the court instructed “Reliance to act on Ms. Hardt’s application by adequately considering all the evidence” within 30 days; “[o]therwise,” it warned, “judgment will be issued in favor of Ms. Hardt.” Id., at 49a.

Reliance did as instructed. After conducting that review, Reliance found Hardt eligible for long-term disability benefits and paid her $55,250 in accrued, past-due benefits.

Hardt then moved for attorney’s fees and costs under §1132(g)(1). The District Court assessed her motion under the three-step framework that governed fee requests in ERISA cases under Circuit precedent. At step one of that framework, a district court asks whether the fee claimant is a “`prevailing party.’” Id., at 15a-16a (quoting Martin v. Blue Cross & Blue Shield of Virginia, Inc., 115 F. 3d 1201, 1210 (CA4 1997), and citing Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 603 (2001)). If the fee claimant qualifies as a prevailing party, the court proceeds to step two and “determin[es] whether an award of attorneys’ fees is appropriate” by examining “five factors.”[ 1 ] App. to Pet. for Cert. 16a. Finally, if those five factors suggest that a fees award is appropriate, the court “must review the attorneys’ fees and costs requested and limit them to a reasonable amount.” Id., at 17a (citing Hensley v. Eckerhart, 461 U. S. 424, 433 (1983)).

Applying that framework, the District Court granted Hardt’s motion. It first concluded that Hardt was a prevailing party because the court’s remand order “sanctioned a material change in the legal relationship of the parties by ordering [Reliance] to conduct the type of review to which [Hardt] was entitled.” Id., at 22a. The court recognized that the order did not “sanctio[n] a certain result on remand,” but found that it “quite clearly expressed the consequences to [Reliance] were it to fail to complete its reconsideration in an expeditious manner.” Id., at 19a. Accordingly, the remand order “signif[ied] that the court was displeased with the cursory review that [Reliance] had initially given to [Hardt's] claim, but was inclined to reserve judgment and permit [Reliance] to conduct a proper review of all of the medical evidence.” Ibid. T h e court next concluded that a fees award was appropriate under the five-factor test, see id., at 22a-25a, and awarded $39,149 in fees and costs, id., at 25a-30a.

Reliance appealed the fees award, and the Court of Appeals vacated the District Court’s order. According to the Court of Appeals, Hardt failed to satisfy the step-one inquiry—i.e., she failed to establish that she was a “prevailing party.” In reaching that conclusion, the Court of Appeals relied on this Court’s decision in Buckhannon, under which a fee claimant qualifies as a “prevailing party” only if he has obtained an “`enforceable judgmen[t] on the merits’” or a “`court-ordered consent decre[e].’” 336 Fed. Appx. 332, 335 (CA4 2009) (per curiam) (quoting 532 U. S., at 604). The Court of Appeals reasoned that because the remand order “did not require Reliance to award benefits to Hardt,” it did “not constitute an `enforceable judgment on the merits’ as Buckhannon requires,” thus precluding Hardt from establishing prevailing party status. 336 Fed. Appx., at 336 (brackets omitted).

Hardt filed a petition for a writ of certiorari seeking review of two aspects of the Court of Appeals’ judgment. First, did the Court of Appeals correctly conclude that §1132(g)(1) permits courts to award attorney’s fees only to a “prevailing party”?[ 2 ] Second, did the Court of Appeals correctly identify the circumstances under which a fee claimant is entitled to attorney’s fees under §1132(g)(1)? We granted certiorari. 558 U. S. ___ (2010).

II

Whether §1132(g)(1) limits the availability of attorney’s fees to a “prevailing party” is a question of statutory construction. As in all such cases, we begin by analyzing the statutory language, “assum[ing] that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Financial Services, Inc., 557 U. S. ___, ___ (2009) (slip op., at 7) (internal quotation marks omitted). We must enforce plain and unambiguous statutory language according to its terms. Carcieri v. Salazar, 555 U. S. ___, ___ (2009) (slip op., at 7); Jimenez v. Quarterman, 555 U. S. ___, ___ (2009) (slip op., at 5).

Section 1132(g)(1) provides:

“In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.”

The words “prevailing party” do not appear in this provi-sion. Nor does anything else in §1132(g)(1)’s text purport to limit the availability of attorney’s fees to a “prevailing party.” Instead, §1132(g)(1) expressly grants district courts “discretion” to award attorney’s fees “to either party.” (Emphasis added.)

That language contrasts sharply with §1132(g)(2), which governs the availability of attorney’s fees in ERISA actions under §1145 (actions to recover delinquent employer contributions to a multiemployer plan). In such cases, only plaintiffs who obtain “a judgment in favor of the plan” may seek attorney’s fees. §1132(g)(2)(D). The contrast between these two paragraphs makes clear that Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases. Because Congress failed to include in §1132(g)(1) an express “prevailing party” limit on the availability of attorney’s fees, the Court of Appeals’ decision adding that term of art to a fee-shifting statute from which it is conspicuously absent more closely resembles “invent[ing] a statute rather than interpret[ing] one.” Pasquantino v. United States, 544 U. S. 349, 359 (2005) (internal quotation marks omitted).

We see no reason to dwell any longer on this question, particularly given Reliance’s concessions. See Brief for Respondent 9-10 (“On its face,” §1132(g)(1) “does not expressly demand, like so many statutes, that a claimant be a `prevailing party’ before receiving attorney’s fees”). We therefore hold that a fee claimant need not be a “prevailing party” to be eligible for an attorney’s fees award under §1132(g)(1).

III

We next consider the circumstances under which a court may award attorney’s fees pursuant to §1132(g)(1). “Our basic point of reference” when considering the award of attorney’s fees is the bedrock principle known as the “`American Rule’”: Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise. Ruckelshaus, 463 U. S., at 683; see id., at 683-686; Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975); Buckhannon, supra, at 602-603; see also Perdue v. Kenny A., 559 U. S. ___, ___ (2010) (slip op., at 5). Statutory changes to this rule take various forms. Most fee-shifting provisions permit a court to award attorney’s fees only to a “prevailing party.”[ 3 ] Others permit a “substantially prevailing” party[ 4 ] or a “successful” litigant[ 5 ] to obtain fees. Still others authorize district courts to award attorney’s fees where “appropriate,”[ 6 ] or simply vest district courts with “discretion” to award fees.[ 7 ]

Of those statutory deviations from the American Rule, we have most often considered statutes containing an express “prevailing party” requirement. See, e.g., Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792-793 (1989); Farrar v. Hobby, 506 U. S. 103, 109-114 (1992); Buckhannon, supra, at 602-606; Sole v. Wyner, 551 U. S. 74, 82-86 (2007). Our “prevailing party” precedents, however, do not govern the availability of fees awards under §1132(g)(1), because this provision does not limit the availability of attorney’s fees to the “prevailing party.” Supra, at 8-9; see also Gross, supra, at ___, (slip op., at 6) (cautioning courts “conducting statutory interpretation . . . `not to apply rules applicable under one statute to a different statute without careful and critical examination’” (quoting Federal Express Corp. v. Holowecki, 552 U. S. 389, 393 (2008))).

Instead, we interpret §1132(g)(1) in light of our precedents addressing statutory deviations from the American Rule that do not limit attorney’s fees awards to the “prevailing party.” In that line of precedents, Ruckelshaus is the principal case. There, the Court interpreted §307(f) of the Clean Air Act, which authorizes a court to award fees “whenever it determines that such an award is appropriate.” 42 U. S. C. §7607(f). We began by noting that because nothing in §307(f)’s text “clear[ly] show[ed]” that Congress meant to abandon the American Rule, 463 U. S., at 685, fee claimants must have achieved some litigating success to be eligible for a fees award under that section, id., at 686. We then concluded that by using the less stringent “whenever . . . appropriate” standard instead of the traditional “prevailing party” standard, Congress had “expand[ed] the class of parties eligible for fees awards from prevailing parties to partially prevailing parties— parties achieving some success, even if not major success.” Id., at 688. We thus held “that, absent some degree of success on the merits by the claimant, it is not `appropriate’ for a federal court to award attorney’s fees under §307(f).” Id., at 694.

Applying the interpretive approach we employed in Ruckelshaus to §1132(g)(1), we first look to “the language of the section,” id., at 682, which unambiguously allows a court to award attorney’s fees “in its discretion . . . to either party,” §1132(g)(1). Statutes vesting judges with such broad discretion are well known in the law, particularly in the attorney’s fees context. See, e.g., n. 7, supra; see also Perdue, 559 U. S., at ___ (slip op., at 14).

Equally well known, however, is the fact that a “judge’s discretion is not unlimited.” Ibid. Consistent with Circuit precedent, the District Court applied five factors to guide its discretion in deciding whether to award attorney’s fees under §1132(g)(1). See supra, at 6, and n. 1. Because these five factors bear no obvious relation to §1132(g)(1)’s text or to our fee-shifting jurisprudence, they are not required for channeling a court’s discretion when awarding fees under this section.

Instead, Ruckelshaus lays down the proper markers to guide a court in exercising the discretion that §1132(g)(1) grants. As in the statute at issue in Ruckelshaus, Congress failed to indicate clearly in §1132(g)(1) that it “meant to abandon historic fee-shifting principles and intuitive notions of fairness.” 463 U. S., at 686. Accordingly, a fees claimant must show “some degree of success on the merits” before a court may award attorney’s fees under §1132(g)(1), id., at 694. A claimant does not satisfy that requirement by achieving “trivial success on the merits” or a “purely procedural victor[y],” but does satisfy it if the court can fairly call the outcome of the litigation some success on the merits without conducting a “lengthy inquir[y] into the question whether a particular party’s success was `substantial’ or occurred on a `central issue.’” Id., at 688, n. 9.[ 8 ]

Reliance essentially agrees that this standard should govern fee requests under §1132(g)(1), see Brief for Respondent 13-31, but argues that Hardt has not satisfied it. Specifically, Reliance contends that a court order remanding an ERISA claim for further consideration can never constitute “some success on the merits,” even if such a remand results in an award of benefits. See id., at 34-50.

Reliance’s argument misses the point, given the facts of this case. Hardt persuaded the District Court to find that “the plan administrator has failed to comply with the ERISA guidelines” and “that Ms. Hardt did not get the kind of review to which she was entitled under applicable law.” App. to Pet. for Cert. 48a; see 29 U. S. C. §1133(2), 29 CFR §2560.503-1(h) (2009). Although Hardt failed to win summary judgment on her benefits claim, the District Court nevertheless found “compelling evidence that Ms. Hardt is totally disabled due to her neuropathy,” and stated that it was “inclined to rule in Ms. Hardt’s favor” on her benefits claim, but declined to do so before “first giving Reliance the chance to address the deficiencies in its” statutorily mandated “full and fair review” of that claim. App. to Pet. for Cert. 48a; 29 U. S. C. §1133(2). Hardt thus obtained a judicial order instructing Reliance “to act on Ms. Hardt’s application by adequately considering all the evidence” within 30 days; “[o]therwise, judgment will be issued in favor of Ms. Hardt.” App. to Pet. for Cert. 49a. After Reliance conducted that court-ordered review, and consistent with the District Court’s appraisal, Reliance reversed its decision and awarded Hardt the benefits she sought. App. 120a-123a.

These facts establish that Hardt has achieved far more than “trivial success on the merits” or a “purely procedural victory.” Accordingly, she has achieved “some success on the merits,” and the District Court properly exercised its discretion to award Hardt attorney’s fees in this case. Because these conclusions resolve this case, we need not decide today whether a remand order, without more, constitutes “some success on the merits” sufficient to make a party eligible for attorney’s fees under §1132(g)(1).[ 9 ]

* * *

We reverse the judgment of the Court of Appeals for the Fourth Circuit and remand this case for proceedings consistent with this opinion.

It is so ordered.

JUSTICE STEVENS, concurring in part and concurring in the judgment.

While I join the Court’s judgment and Parts I and II of its opinion, I do not believe that our mistaken interpretation of §307(f) of the Clean Air Act in Ruckelshaus v. Sierra Club, 463 U. S. 680 (1983), should be given any special weight in the interpretation of this—or any other— different statutory provision. The outcome in that closely divided case turned, to a significant extent, on a judgment about how to read the legislative history of the provision in question. Compare id., at 686-693, with id., at 703-706 (STEVENS, J., dissenting). I agree with the Court in this case that 29 U. S. C. §1132(g)(1) does not impose a “prevailing party” requirement; I agree, further, that the District Court acted well within its discretion in awarding attorney’s fees to this petitioner. But I would examine the text, structure, and history of any other federal statute authorizing an award of fees before concluding that Congress intended the same approach under that statute as under this one.

U.S. Supreme Court Takes Another Step Against Absolute Immunity for Prosecutors – Won’t Stop Dismissed Juror’s Suit Against Federal Prosecutor

Friday, May 21st, 2010

 

Excerpted from The National Law Journal  May 20, 2010

 The U.S. Supreme Court this week declined to hear a case in Washington, D.C., where a federal prosecutor is being sued for his alleged role in improperly removing a grand juror from D.C. Superior Court.

The high court on May 17 rejected without comment the prosecutor’s petition for certiorari, which said the case presents an important issue of prosecutorial immunity. Most immunity cases involve a criminal defendant suing a prosecutor. In this case, a grand juror who was kicked off of a panel is suing a prosecutor.

The Supreme Court’s denial of the petition means the case will proceed in federal district court in Washington.

The grand juror, Peter Atherton, alleges he was removed from a grand jury for asking too many questions. Atherton filed suit against assistant U.S. Attorney Daniel Zachem, and others, in 2004 in the U.S. District Court for the District of Columbia. He is seeking a written apology and $250,000 in damages for alleged emotional trauma.

Other grand jurors said Atherton was disruptive, forcing follow-up votes on cases that had already been indicted. Atherton said the grand jury was racing through cases without a complete understanding of the elements of the offenses.

Zachem reported Atherton to a Superior Court official, who dismissed Atherton. Superior Court rules, however, say that only a judge has the power to remove a sitting grand juror.

Atherton won an early victory in the U.S. Court of Appeals for the D.C. Circuit. Then, last June, the appeals court sided a second time with Atherton. The court reversed the dismissal of Atherton’s due process claims, ruling that Zachem, a supervisor in the U.S. Attorney’s Office for the District of Columbia, is not entitled to absolute immunity. The court said Zachem’s action in reporting Atherton’s alleged disruptive behavior was not “intimately associated” with the criminal justice process.

Athertons attorney …Christian of Steptoe & Johnson said Wednesday the Supreme Court’s denial of the certiorari petition is a “re-affirmation of the principle that absolute immunity is not available for everything that a prosecutor does, and indeed is applied sparingly when it is not necessary to serve the public interest.”

Mongiardo Files Ethics Complaint Against Attorney General Conway –

Tuesday, May 4th, 2010

The following excerpts are taken from the complaint filed by U.S. Senate Candidate Dan Mongiardo against candidate and Attorney General Jack Conway.   The complaint was filed with the Executive Branch Ethics Commission on May 4, 2010.

Allison Hayley of the Conway campaign responds: “These accusations are baseless and false.  Even the Courier-Journal’s Al Cross called them trumped up.  This is just another act of desperation by a campaign whose support is just slipping away,” she said.

Though the Public Service Commission is the regulatory agency which rules on rate hikes and adjustments, an office under Kentucky’s Attorney General is designed to represent the interests of consumers before such governmental rate making agencies.

The complaint raises a issue that an attorney general as an attorney should not accept political contributions from persons he is litigating against. 

Mongiardo press release:

FRANKFORT — Lt. Governor and Democratic Senate candidate Dr. Daniel Mongiardo today filed a formal complaint against Attorney General Jack Conway with the Executive Branch Ethics Commission stating that Conway has “violated the public trust” by accepting over $70,000 in campaign contributions from utility companies, their executives, and lobbyists while approving millions in rate hikes.

In addition, the complaint charges Conway’s approval of higher rates for Atmos Energy financially benefits Conway, since Atmos Energy is a business partner of Kinder Morgan, a Texas natural gas company, in which Conway has invested millions.

The complaint asks the Ethics Commission for an expedited ruling on both matters as Kentucky Utilities and Louisville Gas & Electric have formally filed a $262 million rate hike request with the Public Service Commission and their request is currently pending action by the Attorney General.

“Attorney General Conway’s duty is to represent rate payers-not big utility companies. It is a clear conflict of interest for Attorney General Conway who is supposed to negotiate rate increases on behalf of Kentucky rate payers to have accepted over $70,000 in campaign contributions from utility companies he is negotiating with,” said Mongiardo, who held a news conference in front of the Ethics Commission.

“By approving rate increases for Atmos Energy, Attorney General Conway also financially benefits, since Conway has invested millions in Kinder Morgan, a Texas natural gas company which is a business partner with Atmos. The better Atmos Energy does, the better Kinder Morgan does, the better Jack Conway does,” said Mongiardo.

Mongiardo listed examples that he believes constitute violations of Kentucky ethics laws, specifically KRS 11A.005(1)(a)–:

  • In January, 2009, Attorney General Conway personally approved a $22 million negotiated rate increase for Louisville Gas & Electric (LG&E), a subsidiary of utility giant E.On. Before January 2009, Conway was actively considering a race for U.S. Senate. In fact, within weeks of formally announcing his candidacy for U.S. Senate, the Attorney General solicited and accepted thousands of dollars in campaign contributions from LG&E executives and their registered lobbyists. Does the fact that the Attorney General solicited/accepted campaign contributions from the utility executives and registered lobbyists of E.On/LG&E for which he/his office negotiated and approved a $22 million rate increase constitute a violation of KRS 11A? Does it constitute a conflict of interest or the appearance of a conflict of interest?
  • In June 2009, Attorney General Conway solicited and/or accepted nearly $10,000 in campaign contributions from the executives and registered lobbyists with Atmos Energy, a gas utility company based in Texas that serves 176,000 gas customers in 32 Western Kentucky counties. After accepting thousands in campaign donations from Atmos executives and their registered lobbyists, Attorney General Conway once again personally approved a negotiated multi-million ($5.9 million) dollar rate increase. Does the fact that the Attorney General solicited/accepted campaign contributions from the utility executives and registered lobbyists of Atmos Energy for which he/his office negotiated and approved a $5.9 million rate increase constitute a violation of KRS 11A? Does it constitute a conflict of interest or the appearance of a conflict of interest?
  • While Attorney General Conway and or his office staff was negotiating the $5.9 million rate increase for Atmos Energy, Conway failed to disclose the fact that Atmos Energy – with whom he/his office was negotiating – has a business partnership with a Texas-based energy company called Kinder-Morgan. According to Attorney General Conway’s Personal Financial Disclosure statements filed with this Commission and with the Secretary of the United States Senate, the Attorney General has up to $5 million dollars invested in Kinder-Morgan – 90% of his entire stock investment portfolio.
  • Does the fact that a business in which the Attorney General has invested millions of dollars directly or indirectly benefits as a result of the actions taken by the Attorney General constitute a violation of KRS 11A? Does the fact that the Attorney General failed to publicly disclose his financial interest in Kinder-Morgan, a business partner with Atmos Energy for whom Attorney General Conway approved a negotiated $5.9 million rate increase that directly or indirectly benefited from the actions taken by the Attorney General and his office constitute a violation of KRS 11A?
  • Earlier this year, LG&E and KU formally applied for rate increases with the PSC totaling $262 million. It is unclear at the time of this complaint whether or not the Attorney General or his staff has entered into settlement negotiations with either KU or LG&E. What is clear is that there are on-going public hearings being held across this Commonwealth to solicit public comment regarding their $262 million rate increase request. It is also clear that registered lobbyists for LG&E and KU hosted a fundraiser – while LG&E’s and KU’s rate increase request is pending.
  • Does the fact that the Attorney General attended and accepted campaign contributions at a fundraiser hosted by the registered lobbyists of LG&E and KU, while their rate increase request is pending constitute a violation of KRS 11A? Does it represent a conflict of interest or the appearance of a conflict of interest? Given the fact that the Attorney General profited from a campaign fundraiser hosted by registered lobbyists for LG&E and KU while their $262 million rate increase request is pending, should the Attorney General publicly recuse himself from having any direct or indirect involvement in negotiating with the utilities’ representatives or from approving any possible negotiated rate increase that may result from efforts by his Office of Rate Intervention?

To read the full letter and download a PDF of the supporting documents click here . 

FRANKFORT — Lt. Governor and Democratic Senate candidate Dr. Daniel Mongiardo today filed a formal complaint against Attorney General Jack Conway with the Executive Branch Ethics Commission stating that Conway has “violated the public trust” by accepting over $70,000 in campaign contributions from utility companies, their executives, and lobbyists while approving millions in rate hikes.

In addition, the complaint charges Conway’s approval of higher rates for Atmos Energy financially benefits Conway, since Atmos Energy is a business partner of Kinder Morgan, a Texas natural gas company, in which Conway has invested millions.

The complaint asks the Ethics Commission for an expedited ruling on both matters as Kentucky Utilities and Louisville Gas & Electric have formally filed a $262 million rate hike request with the Public Service Commission and their request is currently pending action by the Attorney General.

“Attorney General Conway’s duty is to represent rate payers-not big utility companies. It is a clear conflict of interest for Attorney General Conway who is supposed to negotiate rate increases on behalf of Kentucky rate payers to have accepted over $70,000 in campaign contributions from utility companies he is negotiating with,” said Mongiardo, who held a news conference in front of the Ethics Commission.

“By approving rate increases for Atmos Energy, Attorney General Conway also financially benefits, since Conway has invested millions in Kinder Morgan, a Texas natural gas company which is a business partner with Atmos. The better Atmos Energy does, the better Kinder Morgan does, the better Jack Conway does,” said Mongiardo.

Mongiardo listed examples that he believes constitute violations of Kentucky ethics laws, specifically KRS 11A.005(1)(a)–:

  • In January, 2009, Attorney General Conway personally approved a $22 million negotiated rate increase for Louisville Gas & Electric (LG&E), a subsidiary of utility giant E.On. Before January 2009, Conway was actively considering a race for U.S. Senate. In fact, within weeks of formally announcing his candidacy for U.S. Senate, the Attorney General solicited and accepted thousands of dollars in campaign contributions from LG&E executives and their registered lobbyists. Does the fact that the Attorney General solicited/accepted campaign contributions from the utility executives and registered lobbyists of E.On/LG&E for which he/his office negotiated and approved a $22 million rate increase constitute a violation of KRS 11A? Does it constitute a conflict of interest or the appearance of a conflict of interest?
  • In June 2009, Attorney General Conway solicited and/or accepted nearly $10,000 in campaign contributions from the executives and registered lobbyists with Atmos Energy, a gas utility company based in Texas that serves 176,000 gas customers in 32 Western Kentucky counties. After accepting thousands in campaign donations from Atmos executives and their registered lobbyists, Attorney General Conway once again personally approved a negotiated multi-million ($5.9 million) dollar rate increase. Does the fact that the Attorney General solicited/accepted campaign contributions from the utility executives and registered lobbyists of Atmos Energy for which he/his office negotiated and approved a $5.9 million rate increase constitute a violation of KRS 11A? Does it constitute a conflict of interest or the appearance of a conflict of interest?
  • While Attorney General Conway and or his office staff was negotiating the $5.9 million rate increase for Atmos Energy, Conway failed to disclose the fact that Atmos Energy – with whom he/his office was negotiating – has a business partnership with a Texas-based energy company called Kinder-Morgan. According to Attorney General Conway’s Personal Financial Disclosure statements filed with this Commission and with the Secretary of the United States Senate, the Attorney General has up to $5 million dollars invested in Kinder-Morgan – 90% of his entire stock investment portfolio.
  • Does the fact that a business in which the Attorney General has invested millions of dollars directly or indirectly benefits as a result of the actions taken by the Attorney General constitute a violation of KRS 11A? Does the fact that the Attorney General failed to publicly disclose his financial interest in Kinder-Morgan, a business partner with Atmos Energy for whom Attorney General Conway approved a negotiated $5.9 million rate increase that directly or indirectly benefited from the actions taken by the Attorney General and his office constitute a violation of KRS 11A?
  • Earlier this year, LG&E and KU formally applied for rate increases with the PSC totaling $262 million. It is unclear at the time of this complaint whether or not the Attorney General or his staff has entered into settlement negotiations with either KU or LG&E. What is clear is that there are on-going public hearings being held across this Commonwealth to solicit public comment regarding their $262 million rate increase request. It is also clear that registered lobbyists for LG&E and KU hosted a fundraiser – while LG&E’s and KU’s rate increase request is pending.
  • Does the fact that the Attorney General attended and accepted campaign contributions at a fundraiser hosted by the registered lobbyists of LG&E and KU, while their rate increase request is pending constitute a violation of KRS 11A? Does it represent a conflict of interest or the appearance of a conflict of interest? Given the fact that the Attorney General profited from a campaign fundraiser hosted by registered lobbyists for LG&E and KU while their $262 million rate increase request is pending, should the Attorney General publicly recuse himself from having any direct or indirect involvement in negotiating with the utilities’ representatives or from approving any possible negotiated rate increase that may result from efforts by his Office of Rate Intervention?

To read the full letter and download a PDF of the supporting documents click here .

 

 

       

/s/ Dan Mongiardo

Stanford University Study Expresses Serious Concern About Funding of Ky. State Pension System

Monday, May 3rd, 2010

 

In an editorial in USA on Monday May 3rd. a Stanford University study was quoted as listing the Kentucky State Pension System as a  ”serious concern” along with 19 other state pension systems. The concern is due to underfunding of pension obligations.  This rating placed Kentucky in the worst category.

One suggestion in the article was to convert pension plans to a 401-K benefit system.

David Steele at steele2732@gmail.com has a law office desk for sale….

Sunday, May 2nd, 2010

 I have FOR SALE a LACASSE Mahogany 30×72 Desk with Hanging file; extended corner unit; Two Drawer lateral file; Hutch 72X16x36; Keyboard Drawer; Center pencil drawer; 24” task light; storage cabinet with 2 drawer lateral file; Excellent condition. Original purchase cost was almost $2,300.00 before tax IN 1998.  It has been used exclusively in a law office setting and I am the original owner. I thought that I would give THOSE  that I am acquainted with and have their e-mail address the first crack at this or maybe you know someone who is looking for something like this.  It is currently set up in my lower level abode [the basement].  You or your referral can call me at (859) 356-0033 or (859) 547-8599. If I don’t hear from anyone I will begin advertising more broadly.

Can legislators be prosecuted criminally for refraining from performing a duty imposed on him by law…such as failure to pass a budget?

Saturday, May 1st, 2010

 

An interesting question is presented when the legislature fails to perform their constitutional duty to pass a budget.  We are not aware of any criminal statue or constitutional provision that says Legislators are immune from the Criminal Code.  Perhaps there is a court ruling that created such immunity.  And one must ask, who would file such a complaint against 138 members of the legislature?

One suggestion we received is for Attorney General Jack Conway to stand up and “Bell the Cat”.  We were asked, “Why doesn’t Conway indict members of the legislature?  That might allow him to close the gap on Mondiardo…and might even earn him some of the Tea Party voters.”

Decide for yourself if these criminal statutes apply.

 

 

KRS 522.010 Definitions.

The following definitions apply in this chapter, unless the context otherwise requires:

(1) “Public servant” means:

(a) Any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state; or

(b) Any person exercising the functions of any such public officer or employee; or

 

KRS 522.020 Official misconduct in the first degree.

(1) A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or

(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or

(c) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Official misconduct in the first degree is a Class A misdemeanor.

 

 

KRS 522.030 Official misconduct in the second degree.

(1) A public servant is guilty of official misconduct in the second degree when he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or

(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or

(c) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Official misconduct in the second degree is a Class B misdemeanor.