Archive for August, 2007


Friday, August 31st, 2007

“In the past we and other courts occasionally have relied on our own precedents to interpret and flesh out Supreme Court decisions to decide variegated petitions as they come before us,” Judge Joseph McLaughlin wrote for the court. “It would appear that we can no longer do this.”
                            Mark Hamblett New York Law Journal August 31, 2007
 A U.S. Supreme Court decision narrowing habeas review of state court procedures may force a convicted cocaine dealer back to prison.
Jose Rodriguez thought he was in the clear in 2006 after the 2nd U.S. Circuit Court of Appeals ordered that his petition for habeas corpus be granted because the trial judge had restricted his family’s access to his trial.
But the government went to the nation’s highest court, which vacated the 2nd Circuit’s ruling and instructed it to reconsider in light of its decision in Carey v. Musladin, 127 S. Ct. 649 (2006).
Wednesday, after applying Musladin to the facts of Rodriguez’ case, the circuit said it could no longer rely on dicta in U.S. Supreme Court decisions in reviewing a habeas case — and it had no choice but to deny the petition in Rodriguez v. Miller, 04-6665-pr.
“In the past we and other courts occasionally have relied on our own precedents to interpret and flesh out Supreme Court decisions to decide variegated petitions as they come before us,” Judge Joseph McLaughlin wrote for the court. “It would appear that we can no longer do this.”
Judges Richard Cardamone and Barrington Parker joined the decision.
Rodriguez originally was sentenced to 30 years to life in prison, but he was released some 10 years into his sentence when the circuit issued its 2006 ruling.
Katheryne Martone of the Legal Aid Society’s Criminal Appeals Bureau said that before Rodriguez is sent back to prison she will apply for resentencing under reforms in the state’s drug laws, which set a different sentencing range and eliminate the lifetime maximum.
Martone said she will also apply to the 2nd Circuit for rehearing en banc.
Rodriguez was tried and convicted in 1995 of selling cocaine to an undercover police officer.
Before his trial, the state moved to close the courtroom to protect the identity of the officer. During a hearing, the officer testified that he had been threatened several times during the course of his work in Bushwick, Brooklyn, would have more investigations in Bushwick in the “near future,” had never testified in open court before, and feared that Rodriguez’s relatives would recognize him and blow his cover.
Brooklyn Supreme Court Justice James G. Starkey initially decided to close the courtroom entirely, but later said he would admit Rodriguez’s mother and brother to attend as long as they sat behind a screen that would block their view of the undercover.
Rodriguez’s lawyer argued the screen would be prejudicial to his defense, and Rodriguez told his family not to attend the trial.
After he was frustrated on direct appeal, Rodriguez filed a habeas petition claiming his Sixth Amendment rights had been violated.
Eastern District of New York Judge Frederic Block denied the petition, but the 2nd Circuit vacated and remanded in 2003. On remand, Block again denied it on the grounds that Rodriguez’s mother and brother could be excluded because they lived near the officer’s territory.
The circuit again reversed in 2006, saying that while the state judge’s findings may have been enough to exclude the general public, a “particularized inquiry” was required before family members are barred. The court said “exclusion of family members requires stricter scrutiny than exclusion of the public.”
The U.S. Supreme Court granted certiorari and vacated the 2nd Circuit’s ruling because of Musladin, a case in which a convicted murderer claimed he had been denied a fair trial because the victim’s family had been allowed to wear buttons bearing an image of the victim.
The 9th U.S. Circuit Court of Appeals granted the petition, finding that the state court’s test for “the inherent prejudice” of the buttons “was contrary to clearly established federal law and constituted an unreasonable application of that law,” which is the federal standard for reversing state court decisions in habeas cases under the Antiterrorism and Effective Death Penalty Act.
The U.S. Supreme Court reversed the 9th Circuit in Musladin, reiterating that “clearly established federal law” only “refers to the holdings, as opposed to the dicta, of this court’s decisions at the time of the relevant state court decisions.”
The Court went on to state that the effect on a defendant’s fair-trial rights of “spectator conduct … is an open question in our jurisprudence.”
In the case of Rodriguez, McLaughlin said the Musladin Court applied the “narrowest possible reading” of its holdings assessing the prejudice of “state-sponsored courtroom practices.”
“Leading by example, Musladin admonishes courts to read the Supreme Court’s holdings narrowly and to disregard as dicta for habeas purposes much of the underlying logic and rationale of the high court’s decisions,” Judge McLaughlin said.
He said the circuit was now required to ignore dicta in other Supreme Court cases, including one that noted that an accused is, at a minimum, entitled to have his relatives and friends present in the courtroom.
McLaughlin then turned to Waller v. Georgia, 467 U.S. 39 (1984), which “provides the ne plus ultra of the Sixth Amendment right to a public trial.”
To close a proceeding, Waller said, the party seeking closure must show “an overriding interest that is likely to be prejudiced,” the closure must be “no broader than necessary,” the court must consider “reasonable alternatives” and the court must “make findings adequate to support the closure.”
McLaughlin said, “Waller does not demand a higher showing before excluding a defendant’s friends and family.”
Rodriguez’s case does not “come within the narrow holdings” of Supreme Court cases on public trials, the judge said, and he “cannot appeal to Supreme Court dicta or decisions of this court,” so “his petition stands or falls solely upon application of the Waller test.”
In addition to Martone, Mitchell Briskey of the Legal Aid Society represented Rodriguez.
“We really feel the court has way over-read Musladin,” Martone said.
Even under Musladin, she said, her client met the Waller test.
Waller requires a closure no broader than necessary and we say that the closure was broader than necessary,” she said. “It’s a well-understood principle that you have the right to have your family present at your trial.”
Brooklyn Assistant District Attorneys Victor Barall and Leonard Joblove represented the government.

Grayson County to break ground on new judicial center Aug. 31

Friday, August 31st, 2007

FRANKFORT, Ky. — Ground will be broken for the proposed Grayson County Judicial Center on Friday, Aug. 31, at the construction site behind Twin Lakes Regional Medical Center off Wallace Avenue in Leitchfield. The public is invited to attend.

Grayson County Judge Executive Gary Logsdon will speak at the dedication. Supreme Court Justice John D. Minton Jr., whose Supreme Court District includes Grayson County, will give the groundbreaking address. Other officials expected to attend include Secretary Norman E. Arflack of the Justice and Public Safety Cabinet, State Sen. Carroll Gibson, State Rep. C.B. Embry Jr. and Grayson County judges, attorneys, law enforcement officials and the circuit court clerk.

The Kentucky General Assembly approved the Grayson County project in 2005 and authorized its funding in 2006. The new justice center has been budgeted at $12 million for 39,900 square feet and is expected to be completed in October 2009. Construction will begin soon after the groundbreaking ceremony.

“I appreciate the legislators who supported improved judicial centers for Grayson and other counties,� said Chief Justice Joseph E. Lambert. “Kentucky citizens generate more than 1 million court cases each year. Our citizens deserve safe, efficient facilities in which to conduct their business before the courts.�

“Because the new judicial centers often replace older, vastly inadequate facilities, the new buildings greatly increase the efficiency of services and public flow,� said Garlan VanHook, general manager of the Department of Court Facilities for the Administrative Office of the Courts (AOC). “All new judicial centers are equipped with the modern infrastructure to support data, computer, video and networking technology. They also provide the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel.�

JRA Architects of Louisville designed the Grayson County Judicial Center. D.W. Wilburn Inc. of Lexington is the general contractor for the project and Hilliard Lyons of Louisville is the financial agent.

Process for Constructing Judicial Facilities
VanHook said that once funding is authorized, the AOC Department of Court Facilities begins to work with local communities to assemble the Project Development Board (PDB) in each county. This board ensures that county and court officials have input on all aspects of the project, including decisions on the site, architect and contractor. The PDB consists of the county judge executive, a fiscal court representative, the chief circuit judge, the circuit court clerk, the AOC director or designee, and a Kentucky Bar Association designee. The AOC’s general manager of court facilities and legal counsel serve in an advisory capacity.

VanHook explained that the AOC provides oversight and administration of court facilities in accordance with House Bill 734, which was passed by the 2000 General Assembly. “As a result of this legislation, the AOC created a process that would fairly and objectively determine facility needs,� he said. “Our Facilities Management System has earned the Kentucky Court of Justice a national reputation for being able to identify facilities with the greatest needs for new construction, renovation, expansion and adaptation.�

As the administrative and fiscal agent for the Kentucky Court of Justice, the AOC oversees construction of court facilities statewide. The AOC also supports the activities of more than 3,500 court system employees, including the elected offices of justices, judges and circuit court clerks. 

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Friday, August 31st, 2007

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Justice Roach Doing Well In His Private Law Practice In Lexington

Thursday, August 30th, 2007

By LawReader Senior Editor Stan Billingsley  – Aug. 31, 2007
Former Kentucky Supreme Court Justice John Roach recently turned 40. He has accomplished a lot in forty years.

In June of 2005, when he was only 38, he was nominated by the Judicial Nominating Commission and then appointed to the Kentucky Supreme Court by Gov. Ernie Fletcher.  After serving on the court for 17 months he was defeated in November of 2006, by then Fayette Circuit Judge Mary Noble.  Since his term ended in November of 2006 he has been busy building a law practice in Lexington.

Roach was born and raised in Frankfort, Kentucky. He and his wife Maria have two children Catherine and Bennett.  Justice Roach says he enjoys having more time to spend with his children who are 10 and 12.  He particularly enjoys having time to play golf with his son Bennett. When asked his handicap he invited LawReader to ask again in about a year.  He said that being so active in politics, state government and the Supreme Court, he had not had much time for golf.


Roach attended Washington and Lee University for his undergraduate studies. He then went on to the University of Kentucky College of Law, where he graduated in the top five of his law school class, served as editor of the Kentucky Law Journal, and was a member of the Order of the Coif. After law school he clerked for Judge Pierce Lively on the United States Court of Appeals for the Sixth Circuit. Thereafter, Roach was an attorney with Akin, Gump, Strauss, Hauer & Feld in Washington, D.C.. In 1995 he joined the law firm of Ransdell, Roach & Wier, PLLC in Lexington, Kentucky and was a partner there from 1996 until 2001.
Roach was General Counsel to Governor Fletcher before his appointment to the bench.  Before going to Frankfort Roach spent seven years in Lexington as an employment and civil rights lawyer, representing women, African Americans and other victims of discrimination who had been subjected to workplace discrimination. In addition to a vigorous trial practice, Roach argued cases before the Kentucky Supreme Court, the Kentucky Court of Appeals and the U.S. Court of Appeals for the 6th Circuit.

At the time of his appointment Governor Fletcher said:  “Having worked with John on a daily basis, I have seen firsthand his extensive knowledge of the law.� “He has worked on some of our Commonwealth’s most important cases, such as how to continue providing vital services to Kentucky families in the absence of a legislatively enacted budget.

He now practices law with Keith Ransdell off Nicholasville Road in Lexington.  His practice has already taken off and he is heavily involved in employment law, commercial litigation and appellate work.  His experience in having served on the Supreme Court certainly gives him an edge on understanding how the appellate process works, and he says he enjoys that portion of his new law practice.

One of the clients he has drawn in since January is the Toyota Motor Company. He is serving as co-counsel in a case for the automobile manufacturer pending in Scott Circuit Court.  He also is representing the state in a lawsuit involving a judge who retired and then was re-elected to the bench and believes he should be able to double-dip and draw a full retirement benefits as well as a full judicial salary.  Chief Justice Lambert has opposed double-dipping by members of the judiciary.

Thomas P. Lewis, who is the former dean and professor emeritus of the UK College of Law at the time of Roach’s appointment to the bench said:

“John is one of the brightest, most engaging and articulate students I have had the pleasure of meeting in or out of the classroom,� Lewis wrote. “…John has extensive experience as a practicing lawyer, direct exposure to the work of appellate judges through a clerkship with the Honorable Pierce Lively, Senior Judge on the U.S. Court of   Appeals for the Sixth Circuit, and ongoing involvement in governmental relations at the local and state levels.�

Sheryl Snyder, one of Kentucky’s most respected litigators said of Justice Roach:

“Working with John Roach on the legal strategy for Governor Fletcher to deal with the legislature having adjourned without enacting a budget, I learned first hand that he has a first rate legal mind accompanied by ‘street smarts.’  That is a combination for success in the private practice of law.” 

Justice Roach did not express any bitterness about his defeat last November.  He says he enjoyed every minute of his experience as General Counsel to the Governor, and as a Supreme Court Justice.  He said he particularly enjoyed the legal arguments among the justices when they met in private in the Supreme Court conference room and argued their positions of the pending cases before voting on those decisions.  He enjoyed the give and take of the legal arguments among the court members.

He does not appear to harbor any ill will about his election defeat.  Although he did say that the two things he has enjoyed most after returning to private practice was a vacation trip to Egypt with his father and his brother, and cancelling his subscription to the Lexington Herald-Leader.  He says he considers his years of public service with fondness and said he was fortunate to have two jobs that he loved.

LawReader asked him if he had any plans for seeking elective office in the future. He said he “considered public service a high calling� but he had no current plans for returning to public service. He wouldn’t say he would never do this. He said with a chuckle, he would “probably have to hear the voice of God pretty clearly� before deciding to run for public office again.  For now his focus is clearly on spending some important time with his children and building a successful law practice.

Justice Roach is considered by many as one of the brightest stars to emerge from the Fletcher Administration. We predict that the name of John Roach will be heard again in Frankfort or Washington. His story is not finished by a long shot.

Highlights of John Roach’s Legal Accomplishments

• General Counsel, Commonwealth of Kentucky: Helping develop and defend in court the spending plan issued by the Governor; instituting more than $1 million in savings by reducing outside legal contracts; overseeing lawyers in nine cabinets (2003-present)

• Employment discrimination and civil rights lawyer: Represented victims of discrimination who had been subjected to workplace discrimination; participated in numerous jury trials. Argued cases before the Kentucky Supreme Court, the Kentucky Court of Appeals and the U.S. Court of Appeals for the 6th Circuit (1995-2001)

• Lecturer for numerous statewide seminars on employment and civil rights issues

• Co-author of law articles on employment law and the Americans with Disabilities Act

• Corporate transactions lawyer, Akin, Gump, Strauss, Hauer & Feld, one of the largest law firm in the world and represented companies such as Food Lion and Granite Broadcasting (1993-1994)

• Law clerk to Honorable Pierce Lively, United States Court of Appeals for the Sixth Circuit (1992-1993)

• Graduate of the University of Kentucky College of Law: Graduated with high distinction in the top five in his class, served as articles editor for Kentucky’s Law Journal, was inducted into the Order of the Coif and was awarded the Faculty Cup, which honors a single graduate for outstanding performance by a vote of the law school faculty (J.D., 1992)


U.S. Justice Department Lawyers Mutiny and Refuse Detainee Cases

Thursday, August 30th, 2007

Some lawyers in the civil appeals division object to the government’s policies on Guantánamo Bay


By Emma Schwartz    U.S. News and World Report August 30, 2007


The government’s legal arguments justifying the detention of hundreds of people at the Guantánamo Bay naval base have been repudiated three times by the U.S. Supreme Court. But it’s not just outsiders who take issue with the U.S. Justice Department strategy: Up to one fourth of the department’s own civil appellate staff has recently opted out of handling the government’s cases against detainee appeals, two sources familiar with the matter tell U.S. News.


These conscientious objectors—their exact number is not known—have decided not to take part in the government’s litigation against the detainees because of disagreements with the legal approach, these sources say. They would not elaborate on the specific reasons for the objections, but critics have long objected to the government’s failure to formally charge detainees and have pushed for closing Guantánamo because of allegations of torture and inhumane conditions. Defense lawyers also contend that the government has stymied their cases by withholding documents and curbing client access.

The quiet rebellion has emerged in recent months among the approximately 56 attorneys in the appellate section of the Justice Department’s civil division following a court ruling in February that placed the defense of the approximately 130 remaining Guantánamo cases under the responsibility of the appellate lawyers. More than 300 men captured shortly after the U.S. invasion of Afghanistan in 2001 are still being held at Guantánamo over alleged ties to terrorists, although all but a handful have never been formally charged with crimes.


Though the objectors have created some tension among the appellate staff, it’s unclear that their opposition has hampered the government’s efforts—especially because the court ruling will be reviewed by the Supreme Court this term. But the staff attorneys’ objections highlight how dissension has grown even within the department’s own ranks.

Justice Department spokesperson Charles Miller declined comment.


The Justice Department has no formal policy allowing attorneys to opt out of certain cases, unlike some law firms that make clear they won’t penalize associates who, for instance, choose not to defend tobacco companies. But, informally, attorneys have rejected certain types of cases.


Most famously, in 1982, then Deputy Solicitor General Lawrence Wallace signed off on a brief in Bob Jones University v. United States but in a footnote noted his opposition to the department’s position. The argument went against an Internal Revenue Service policy that denied tax-exempt status to institutions that discriminated by race.

The government’s treatment of the Guantánamo detainees has a troubled legal history. The Justice Department initially denied the detainees any legal rights, arguing that the federal courts had no jurisdiction over foreigners captured overseas and held on the base in Cuba. But in 2004, the Supreme Court ruled that the federal courts had the obligation to hear petitions challenging the detainees’ detention because Guantánamo Bay is controlled by the U.S. military.


In an effort to block a flood of litigation, Congress passed the Detainee Treatment Act in December 2005, barring cases challenging detainees’ detention—habeas corpus petitions—from the federal courts. But in 2006, the Supreme Court ruled that the law did not apply to cases that had already been filed. That left a slew of petitions in the federal courts. The ruling also threw out the White House’s newly created military commission system because it did not comply with the Geneva Conventions.


Congress tried to stanch the litigation once again in October 2006 with the Military Commissions Act, which banned all habeas petitions by Guantánamo detainees. But it allowed them to file more narrow challenges of their status as enemy combatants—only in the more conservative U.S. Court of Appeals for the D.C. Circuit. The detainees tried to challenge the law, but in February a divided three-judge panel on the D.C. Circuit ruled against them, effectively moving all detainee litigation into the D.C. Circuit and into the hands of the civil appellate lawyers.


Although the Supreme Court is planning to address the ruling this year, the Justice Department has recently been on the defense in the D.C. Circuit. A different unanimous three-judge panel held in July that the government must turn over more information for the court’s review of the detainees’ new challenges, a ruling that the Justice Department has continued to contest.


Justice Dept. Inspector General Announces Investigation of A.G. Gonzales Congressional Testimony

Thursday, August 30th, 2007

By DAVID STOUT  The New York Times  August 30, 2007
WASHINGTON, Aug. 30 — The Justice Department’s inspector general said today that he was investigating whether Attorney General Alberto R. Gonzales deliberately misled Congress about dissent within the Bush administration over a terrorist surveillance program and the firings of federal prosecutors.
The inquiry, disclosed in a letter from Inspector General Glenn A. Fine to the Senate Judiciary Committee, suggested the possibility of a wider and deeper investigation into the activities and truthfulness of Mr. Gonzales conducted by the very department that he heads. Mr. Gonzales announced on Monday that he was resigning, effective Sept. 17.
It has been known for some time that Mr. Fine’s office has been looking into the actions of Mr. Gonzales and other high Justice Department officials regarding the dismissals of nine United States attorneys last year, under circumstances that even Mr. Gonzales and his allies have acknowledged were puzzling and were accompanied by vague and contradictory explanations.
But in his letter to Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the judiciary panel, Mr. Fine made it clear that he was also looking into whether Mr. Gonzales made statements to Congress that were “intentionally false, misleading, or inappropriate,� both about the firing of the prosecutors and about the terrorist-surveillance program, as Mr. Leahy had asked him to do.
His office “has ongoing investigations that relate to most of the subjects addressed by the attorney general’s testimony that you identified,� Mr. Fine told Mr. Leahy.
“In particular,� Mr. Fine went on, his office is conducting a review “relating to the terrorist-surveillance program, as well as a follow-up review of the use of national security letters,� which investigators use to obtain information on e-mail messages, telephone calls and other records from private companies without court approval.
In addition, Mr. Fine said, his office is conducting an inquiry, along with the department’s Office of Professional Responsibility, into the removal of the prosecutors and other hiring and firing practices at the Justice Department.
Senator Leahy has been one of Mr. Gonzales’s severest critics, and he has vowed to continue to press for investigations of Mr. Gonzales, even though Mr. Gonzales is stepping down.
Mr. Leahy and other Gonzales critics have zeroed in on testimony the attorney general gave five weeks ago before the Judiciary Committee, suggesting that a heated dispute within the Bush administration early in 2004 was not about the warrantless terrorist-surveillance program, which had not yet been made public then; “other intelligence activities� were the subject of the dispute, he testified.
Lying to Congress is a crime. But courts have held that a person cannot be convicted of perjury just because he is a “wily witness� who tries to restrict his answers to the literal truth. Some Gonzales supporters who reviewed his testimony said his answers may have been deliberately narrow, perhaps to avoid revealing national security secrets, but were not necessarily intentional falsehoods.
But Mr. Leahy has said publicly that he simply does not trust Mr. Gonzales.
In a statement today, Mr. Leahy said he was pleased at the scope of Mr. Fine’s inquiry. “His investigations can help restore independence and accountability, which have been sorely lacking at the Justice Department,� the senator said.

You must see this video of Historys first IT Technician

Thursday, August 30th, 2007

Did you ever wonder how the first IT technician got his start?  This video reveals how it happened. LawReader tries to assist our users with the same dedication shown by this early pioneer.
go to:  History’s First IT Specialist Video 

Iowa court delivers win for human rights Reaffirms Miranda

Thursday, August 30th, 2007

August 30, 2007 

After an hour of questioning, suspect Kevin Harris asked to have a lawyer present during an interrogation with Cedar Rapids police investigating a murder and arson. His request was not fulfilled. Instead, the detective continued asking questions, and ultimately wheedled a confession out of Harris.

A Linn County District Court judge relied, in part, on that confession to convict Harris of a felony after another district judge had dismissed Harris’ motion to have the confession thrown out. A three-judge panel of the Iowa Court of Appeals agreed with that ruling and upheld Harris’ conviction.

Thus, in the eyes of Cedar Rapids police, county prosecutors, the Iowa attorney general, two trial-court judges and three appeals-court judges, no harm had been done to Harris’ constitutional right under the Fifth Amendment.

They all got it wrong.

Fortunately, the seven justices of the Iowa Supreme Court ruled unanimously that the confession was obtained illegally and that Harris must have a new trial based on other evidence.

This ruling is not just a win for a guy charged with a hideous crime but also for anyone accused of any crime. It reaffirms the civil-liberties principle that no man may be made to testify against himself. This principle dates at least as far back as English common law and was made part of the American Constitution in the Bill of Rights.

The rules for protecting this right are bedrock criminal-justice law and procedure: The recitation of the Miranda warning – from the U.S. Supreme Court’s landmark Miranda v. Arizona – is a standard feature on television cop shows. Still, somehow, Iowa law-enforcement authorities and lower courts managed to get it wrong.

They argued that Harris waived his right to a lawyer – even after he repeatedly asked for one – because his request was “ambiguous” and because he continued to answer the detective’s questions. The Supreme Court, in an opinion by Justice Michael Streit, eviscerates that argument. Harris is on tape clearly and repeatedly asking for a lawyer, but the detective responded not by ending the interrogation but by saying, “You don’t trust us enough to do it without a lawyer?”

If Harris had continued the interview on his own initiative, he would have effectively waived his right to have a lawyer present. But that’s not what happened. Instead, the confession came after the detective – ignoring the request for a lawyer – re-initiated questioning.

The U.S. Supreme Court 26 years ago held that once a suspect in custody has asked for legal counsel, authorities may not continue questioning unless the suspect “knowingly and intelligently” waives the right to a lawyer by volunteering to continue answering questions without the assistance of counsel.

Harris clearly did not knowingly, intelligently or voluntarily waive his right to a lawyer. Rather, the Iowa Supreme Court said, Harris “clearly and unequivocally requested an attorney.” With the “don’t you trust us without a lawyer” question, the detective “deftly and subtly kept Harris talking,” the court said. Thus, his confession, illegally obtained, cannot be used against him.

Even though too many other lawyers and judges had this case wrong, the Iowa Supreme Court correctly and forcefully upheld vital legal protections of the Fifth Amendment. For that, Iowans should be proud of their court 


Supreme Court sets National Standard for Pleading Scienter in Securities Fraud Cases

Thursday, August 30th, 2007

30 August 2007  Article by Eric Landau, Shawn M. Harpen and Kristel A. Robinson

In the recent decision of Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Supreme Court of the United States set a national standard for pleading scienter in securities fraud actions brought under Section 10(b) of the Securities Exchange Act of 1934. Addressing the application of the heightened pleading standards set forth in the Private Securities Litigation Reform Act (PSLRA), the 8-1 Supreme Court decision resolves a split among the federal circuits with regard to the pleading of scienter.
To survive a motion to dismiss under the PSLRA, a plaintiff must allege with particularity facts giving rise to a strong inference that the defendant made the misrepresentations or omissions with scienter, i.e., knowingly or in a severely reckless manner. However, as the Supreme Court noted in Tellabs, the statute does not define “strong inference” and this has led to different interpretations across jurisdictions.
Through Tellabs, the Supreme Court aimed “to prescribe a workable construction of the ‘strong inference’ standard, a reading geared to the PSLRA’s twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors’ ability to recover on meritorious claims.” In furtherance of these goals, the Supreme Court set forth standards to be used by the district courts when evaluating the viability of a complaint.
The Tellabs Pleading Standard
First, in ruling on a motion to dismiss a securities fraud action, “courts must, as with any motion to dismiss for failure to plead a claim on which relief may be granted, accept all factual allegations in the complaint as true.” Second, courts should consider complaints in their entirety, as well as other sources of information appropriate for courts to consider on a motion to dismiss, such as documents incorporated into a complaint by reference, or public filings and other matters of which a court may take judicial notice. This language suggests that district courts will have less discretion when considering a request for judicial notice. For example, in a case involving allegations of misstatements or omissions in a proxy statement, it may now be mandatory for courts to consider the entirety of the proxy statement when evaluating a motion to dismiss. In this manner, bad facts (from a plaintiff’s perspective) can no longer be ignored at the pleadings stage, but now must be considered and weighed in deciding if the plaintiff’s story is at least as plausible as the facts contained in public filings.
The Supreme Court further explained that the inquiry for the district court is “whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.” Thus, the allegations of scienter are to be viewed holistically. It is important to note, however, that only well-pleaded, specific allegations should be considered. As the Supreme Court confirmed, “omissions and ambiguities count against inferring scienter, for plaintiffs must ‘state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.
Finally, and most significantly, the Supreme Court held that “in determining whether the pleaded facts give rise to a ‘strong’ inference of scienter, the court must take into account plausible opposing inferences.” More specifically, a court may not only consider “inferences favoring the plaintiff,” but must also “consider plausible nonculpable explanations for the defendant’s conduct.” As the Supreme Court explained, the district court must conduct a comparative analysis of competing inferences because the PSLRA does “not merely require plaintiffs to ‘provide a factual basis for [their] scienter allegations,’. . . i.e., to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a ‘strong’—i.e., a powerful or cogent—inference.” Thus, per Tellabs, “the inference of scienter must be more than merely ‘reasonable’ or ‘permissible’—it must be cogent and compelling, thus strong in light of other explanations. . . . [and] at least as compelling as any opposing inference one could draw from the facts alleged.”
Application Of Pleading Standard
Although the Supreme Court requires courts to weigh inferences, it does not require inferences advanced by plaintiffs to be the most plausible inferences, as the Sixth Circuit had held in Helwig v. Vencor, Inc. Instead, under this new pleading standard, a plaintiff’s case will be permitted to proceed to discovery as long as, when viewed holistically, the allegations of his complaint support an inference of scienter that is at least as plausible as the inference of innocence. For most jurisdictions, other than the Sixth Circuit, the Tellabs decision will represent a tougher pleading standard to be met by the plaintiff’s securities bar.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Planning Ahead To Respond To E-Discovery Requests

Thursday, August 30th, 2007

30 August 2007 Article by Bobbi Basile and David Wetmore



Originally published in The Metropolitan Corporate Counsel magazine.


 The newly enacted amendments to the Federal Rules of Civil Procedure have had the legal community abuzz for months as lawyers, both in-house and outside, have worked to determine what the revisions mean to them. One thing the revised rules do is place more emphasis than ever on the importance of effective litigation hold programs within companies. 

Preparation begins with records management. Records management is the science (and some argue the art) of retaining records just long enough to meet legal and regulatory requirements as well as business needs – and no longer. In the absence of a legal requirement, information should be kept only for business or regulatory purposes. If it is not valuable to the organization or required to be kept by regulations, laws, or other reasons, it should be discarded. Storage is cheap but not free and information clutter has its own costs. As a result, accumulated data generally should go through automated destruction that is scheduled based on a company’s records retention policy. 

When an organization implements a legal hold in response to a discovery request or other data-preservation order, it is like pressing a pause button on the destruction of records. Of course, it is not quite that simple. With records housed in multiple formats in many different places with disparate custodians and retention requirements, knowing which pauses to hit can be a question worthy of the Sphinx. 

When a company is required to preserve electronically stored information in connection with a legal proceeding, each day of uncertainty regarding relevant data’s whereabouts increases the risk exponentially. Technology infrastructure and corporate IT operational processes were not designed to segregate “relevant” data and preserve it indefinitely. Furthermore, the spectrum of applications containing data subject to discovery undoubtedly crosses functional and IT management systems, making the problem all the more complex. 

While the task is quite daunting, it is more manageable if people within the organization already know the answers to several questions. For example, what data may be applicable to specific issues or business processes? Is the data on-line, off-line, or in legacy systems? Where does it reside? What application(s) generate the information? Who manages the information (e.g., individual users or a database administrator)? What are the current retention practices? What options exist for preservation? Is data routinely overwritten or archived? 

These questions can be very difficult to answer, and nearly impossible to determine quickly with a pending discovery request, if they were not previously established. Even if company representatives are able to figure it all out, the likelihood is that some relevant documents and data will be destroyed through normal IT operations in the interim. Preparation in the form of knowing where your information is, who is responsible for maintaining it, when it is scheduled for destruction and how to stop that, and other relevant facts will make a company’s efforts in implementing a litigation hold less intrusive, more effective, and less expensive. 

Planning For Discovery Response 

While each organization is unique in its business processes and IT management practices, some general principles apply in most cases when it comes to preparing for the eventuality of litigation and regulatory inquiries and the related preservation orders. The following steps are meant to provide an idea of what preparation for discovery might look like. 

  1. Convene a discovery response team consisting of, at a minimum, representatives from the legal department, records management, IT infrastructure – applications, IT data storage, e-mail messaging, finance, human resources, and, if identifiable, other business units typically subject to discovery requests.  
  2. Develop a systems inventory. Create a map of business applications, e-mail, and other systems that manage user documents. The map should include physical locations, operating systems, backup systems and schedules, business owners, and IT owners.  
  3. Do not overlook e-mail. Does the company maintain e-mail centrally? Are copies of mail files stored on local machines? How is e-mail currently identified in response to requests? How long is it kept?  
  4. Understand your financial systems. Organizations are often called upon to preserve financial data. Based on circumstances, the definition of financial data can be narrow or broad (e.g., preserve all customer sales records, or preserve all data related to the company’s profit and loss calculations)  
  5. Examine the corporate retention schedule. Is the retention schedule current? Does it accurately reflect the information generated by the organization? Are the retention periods accurate? Most importantly, is it currently being followed in managing both paper and electronic records?  
  6. Examine historical discovery requests and data-preservation orders to identify trends. For example, if 70% of past discovery requests related to financial information while 30% related to human resource information, the team will at least want to focus on those areas specifically.  
  7. Prioritize the focus of the discovery response team to a particular type of information, business unit, or system based on the historical data and thorough risk analysis.  
  8. Develop a response plan. The records manager, business owners, IT owners, in-house counsel, compliance officers, and others should work together to design a plan based on the high-priority scenarios. For instance, the team may determine that a particular type of request or order may result in the need to obtain additional IT resources or even change the systems, tools, and processes for data storage. Similarly, they may have found that a predecessor system from which the data has not been migrated may need to be resuscitated. The team even may decide the company no longer needs certain information or that a routine rotation cycle is prudent. Of course, they will want to consult with the corporate retention schedule and the legal department before destroying any information or changing retention periods.  
  9. Develop a stakeholder-notification process to let relevant people know that certain information is subject to a hold or a data-preservation order. The process should include validation that the recipient has received the notice and a requirement for a plan of action.  
  10. Develop the process to monitor compliance. This may include follow-up with those who must retain documents and even in-person interviews with primary custodians of relevant records. The discovery response team should meet regularly during the enactment of any litigation hold to examine and address preservation requirements and the effectiveness of the plan in place.  
  11. Develop the process to implement the response plans. For example, for a given situation, determine the roles to be filled by the business owner, the IT manager, and the data storage group, among others. Standardize the documentation of the process.  
  12. Develop scenarios to test the system based on historical and anticipated discovery requests and data-preservation orders. The scenarios should include best- and worst-case situations. They also should include a wide variety of likely information storage types, applications, and media (e.g. mainframe, email, custom applications, network share drives, laptops, PDA).  
  13. Revise the plan continuously as necessary. Return to step 10 and consider a better, more efficient way to preserve this information as different situations or real-world experiences inform the process. 

Preparation Offers Many Benefits 

This effort creates the process by which an organization may rapidly respond to a discovery request or preservation order. It also may identify areas where its obligation to preserve may be of concern or overly burdensome, which is crucial in negotiating with opposing counsel and the court. 

Planning for discovery response also helps a company determine where it may need to strengthen its records-management procedures. This will afford the organization the opportunity to both improve operations and correct any weaknesses before it is required to preserve or produce documents. In doing so, the company’s legal department or outside counsel will be in a position to strongly defend the collection and preservation process. Finally, having a program in place reduces the risk of not complying with a discovery request or inadvertently misrepresenting the scope of the production. 

By preparing a legal hold program, organizations can ease their own discovery-response experiences and possibly protect themselves in court should mistakes happen. That in itself will serve the organization well in the long run, whether it endures one lawsuit a week or one in a generation. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. 


Drive-By Discrimination Rules Changed

Thursday, August 30th, 2007

30 August 2007  Article by Steven B. Katz and Andrew Miller
 Court holds that liability under the Unruh Act is limited to actual business patrons

 For more than two decades, the plaintiffs’ bar has tried to stretch the Unruh Civil Rights Act past its breaking point. It has done this by arguing that the act not only provides a monetary remedy to those who patronize a business and suffer discrimination, but that it also entails the same remedy for those who wanted to patronize a business, but were “deterred” from doing so because they would suffer discrimination. We call the latter “drive-by” discrimination. Although the federal courts predicted that the California Supreme Court would endorse drive-by discrimination, the recent decision in Angelucci v. Century Supper Club proves them wrong. In Angelucci, the court holds that liability under the Unruh Act is limited to actual patrons of a business establishment.
Unruh’s Rules
The stakes in the debate over the viability of drive-by discrimination claims are significant. California’s Unruh Civil Rights Act (C.C.P. Section 52[a]) provides for an award of damages of no less than $4,000 for each and every offense against a business that “denies, aids or incites a denial, or makes any discrimination” by providing less than full and equal services based on “sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation.” (This list is illustrative, but not exhaustive. See, for example, Koire v. Metro Car Wash, 40 Cal.3d 24, 28 [1985]; Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 725 [1982]; In re Cox, 3 Cal.3d 205, 216 [1970].) When Unruh Act claims are combined with a request for class relief, or claims under the Unfair Competition Law (Bus. & Prof. Code section 17200) or Consumer Legal Remedies Act (Civ. Code section 1750), drive-by discrimination claims can double or triple (perhaps even more) a business’s potential liability.
Decisions from the 9th Circuit and Northern District predicted that California courts would embrace deterrence-based claims and hold that drive-by discrimination was a viable theory of relief under the Unruh Act. See Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (where an establishment’s lack of handicapped parking, which deterred a disabled plaintiff from patronizing it, was a sufficient denial of rights for the plaintiff to bring a claim under the Unruh Act); Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal. 1994) (holding that a disabled person who was deterred from going to a local movie theater because of inadequate wheelchair accommodations could bring a claim under the Unruh Act). But on May 31, 2007, our high court proved them wrong.
The Angelucci Case
In Angelucci v. Century Supper Club, the court unanimously ruled that an individual alleging that a business discriminated against him need not show that he requested, and was refused, nondiscriminatory treatment in order to bring a claim under the Unruh Civil Rights Act. Its reasoning, however, strongly suggests that it would reject so-called “deterrence” claims.
Marc Angelucci is a former president of the Los Angeles chapter of the National Coalition of Free Men. The NCFM is a nonprofit civil rights organization that “looks at the ways sex discrimination affects men and boys.” Apparently seeking a test case to challenge a common nightclub and restaurant promotion known as a “ladies night,” he and three other men patronized the Century Supper Club on several occasions. On each visit, Angelucci and the others were charged a higher cover charge than the women patronizing the club—on one occasion he was charged $20 while the cover for women was only $15, and two days later he was charged $20 while women were allowed in for free.
The Superior Court granted summary judgment for Century Supper Club and the Second District Court of Appeal affirmed. In its ruling, the Second District stressed the plaintiffs’ failure to affirmatively demand equal treatment from Century, holding “that there must be an affirmative assertion of the right to equal treatment.” The court added that this policy would avoid individuals exploiting the law for financial gain and only allow claims in which “genuine grievances” could be remedied.
Chief Justice Ronald M. George, writing for a unanimous Supreme Court, reversed. In its analysis, the court first looked to the ordinary meaning of the language of the act in light of its legislative purpose. Drawing on the similarity of the act and the Constitution’s use of the word “deny” in the equal protection clause, the court rejected the view that denial was limited to a business’s response to an affirmative demand for equal accommodation. Instead, the denial of rights under the act must similarly apply to both the active and passive sufferers of discrimination.
The court criticized two major consequences of the Second District’s interpretation. First, a business would not be liable under the act if a person was unable to affirmatively demand equal treatment at the time the discrimination occurred, either because the customer discovered the discrimination after the fact, or because was no one present to receive a complaint at the time that the discrimination occurred (as was the case with racially segregated drinking fountains in the past).
Second, noting the legislature’s goal of creating and preserving a nondiscriminatory business environment in California, the court stressed the necessity of reading the act broadly to achieve this goal. Accordingly, the court concluded, the “Court of Appeal’s interpretation leaves business establishments free to advertise and provide gender-based discounts and, presumably, to engage in other forms of discrimination that violate the act, so long as these establishments agree to provide equal treatment to those customers knowledgeable and assertive enough to demand it.”
Finally, the court rejected the view that numerous earlier decisions of the Court of Appeal required a plaintiff to affirmatively request equal treatment in order to bring a claim under the act. At most, the court held, these cases stood for the proposition that a person must affirmatively request service in order to be discriminated against, not that he specifically request equal treatment. In other words, a plaintiff cannot bring a claim under the act if he has not personally been damaged by being denied equal service. This accords with the court’s earlier decision in Koire, where it held that “a business establishment’s policy of affording price discounts to female patrons purely on the basis of gender ordinarily constitutes unlawful discrimination against male patrons within the meaning of the act.” The court in Koire also concluded that arbitrary sex discrimination is “per se injurious,” that both business access and patron treatment are covered by the act, and that the plaintiff was injured when he presented himself for admission and was subsequently charged the nondiscounted price.
Narrowing Applicability
Although Angelucci makes it easier for at least some Unruh Act plaintiffs to sue, its long-term impact will likely be to limit the scope of such claims and prevent the abuses associated with drive-by discrimination claims.
First, the decision suggests that the courts should impose limitations on recovery for multiple instances of the same allegedly discriminatory policy claimed by a plaintiff. In order to avoid abuse of the $4,000 penalty, the court acknowledged that “equitable consideration[s]” against “unclean hands” and “constitutional constraints” against excessive fines may need to be taken into consideration for repeated unannounced visitors.
Second, Angelucci is a price discrimination case, not an access case. The court’s analysis focused on the impracticalities of requiring a plaintiff who is already patronizing an establishment to make the further demand that he or she be charged the same as other patrons. The same impracticalities do not exist where the plaintiff never attempts to patronize an establishment, claiming that he knew that he would have been discriminated against.
While rejecting the Second District’s holding, the court accepts the proposition that “a plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct.” When defining “actually suffer,” the court looks to a previous Court of Appeal case, which held that a claim can be brought only by those who are “actually denied full and equal treatment by a business establishment” (emphasis added). In a deterrence claim, the plaintiff is not “actually denied” service, but is claiming that he knew that he would be discriminated against despite his failure to seek access. As the court in Arnold suggested, disability discrimination claims differ from non-disability discrimination claims in that objective physical barriers are more easily ascertained than the more subjective valuation of other claims that can allow for varying interpretations.
Angeluccicites to nearly a dozen examples of discriminatory practices; each of which required the plaintiff to have physically patronized the discriminatory service and “stand at most for the proposition that persons who were not patrons of a business establishment or who did not present themselves for service or access as a patron and tender the price of admission did not adequately allege injury.” Accordingly, the court holds that “injury occurs when the discriminatory policy is applied to the plaintiff—that is, at the time the plaintiff patronizes the business establishment, tendering the nondiscounted price of admission.” It is impossible to reconcile drive-by discrimination claims with this rule.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Use Of Sample Surveys In Product Liability Litigation

Thursday, August 30th, 2007

30 August 2007  Article by Kent D. Van Liere

 This article first appeared in the 5th edition of The International Comparative Legal Guide to: Product Liability 2007; published by Global Legal Group Ltd, London (

 I. Introduction
Product liability refers to legal claims in which an injured party may recover some type of monetary compensation from the manufacturer or seller of a product. In the United States, the claims generally associated with product liability stem from claims of:

  • negligence;
  • strict liability;
  • breach of warranty;
  • and consumer protection.

Product liability litigation arises from a range of circumstances in which a specific product or product use comes under scrutiny. Manifestations of issues with a product include product failure, product misuse, and adverse side effects associated with an otherwise properly functioning and properly used product. A product liability claim tends to fall into one of three possible types: design defects, manufacturing defects, and failure to warn. Depending on the nature of the liability claim, different issues must be addressed. For example, product liability claims arising from some form of negligence (such as failure to warn) may require showing there is a duty owed to a party, that the duty was breached, and that the breach resulted in injury. In contrast, manufacturing defects often focus on “strict liability” in which the manufacturer is held liable for a defective product even if they are not directly implicated in the processes that led to the defect. An example of strict liability can be seen in the recent pet food recall in which a pet food maker in North America was held responsible even though they unknowingly purchased a contaminated ingredient from companies in China.
Whatever the nature of the liability at issue, analysis of product liability claims typically involves determining how the product was used, what customers’ expected of the product, what representations were made to customers about the product, and its failure rate. Such analysis is based on information that must be collected from product purchasers, users, or people exposed to the product as well as on the performance of the product. In addition, product liability actions often involve products that have been manufactured in the thousands or millions of units and consumers’ purchase, use, or exposure may reflect equally large numbers. The pet food contamination resulted in a recall of more then 60 million cans and pouches of food with untold numbers of pets exposed. Given the nature of the information required in these actions and the size of the population of products and consumers, sample surveys are an important tool. Sample surveys can address such things as how the product was purchased, the characteristics of the situation or environment in which the customer used the product, and any associated suffered damage. Further with the careful application of sampling techniques, data can be collected on smaller groups and the information can be extrapolated to the population of people or products.
In this chapter we review the uses of samples and surveys in product liability litigation, describe examples in which surveys played an important role, and discuss how surveys should be designed and implemented to produce reliable expert testimony. We then review the analytic framework that we use to quantify potential liability exposure in product liability cases in general; this framework can rely on estimated failure rates measured with a survey.
II. What is a Sample Survey?
We use the term sample surveys in this chapter to refer to a range of techniques in which a sample of elements from the relevant population is identified and a systematic procedure for asking questions, and sometimes measuring other conditions, is developed and followed. This is a broad definition and is intended to emphasise both the use of sampling techniques and the “systematic” process of asking questions.
Commonly, questionnaires may address opinion or expectation questions such as what were consumer expectations for the safety of a product. These types of survey questions focus on consumers or decision-makers state of mind or understanding of an issue. Labels applied to such surveys in the context of product liability litigation include opinion questionnaires, opinion surveys and consumer expectations surveys.
Also applicable are surveys that provide information on a range of other relevant issues associated with the purchase, use, and/or exposure to a product. These surveys may focus on collecting key facts about the purchase process such as whether the consumer recalls seeing specific advertising or whether they purchased the product in a particular store. Sample surveys used to measure key “factual” information about the use of the product have no particular label but are also often referred to as sample surveys.
Finally, there are sample surveys that combine asking questions and measuring physical conditions such that the survey responses of consumers and the actual conditions of a product can be linked. For example, in construction product defect cases it may be important to link specific physical conditions, such as water stains around a window, with information on how the homeowners use that window, in particular whether the window is always closed or whether it is left open from time to time allowing rain in. Thus, the term sample survey is used to identify a range of information collection processes in product liability cases.
III. Why Sample Surveys in Product Liability?
There are at least six reasons why the use of sample surveys may be found in product liability litigation.

  • To determine the who and how of a product’s use. In many cases knowledge of who uses or has used the product and what conditions surround the use of the product may be at issue. In these cases survey and sampling procedures may be proposed as a method to advise the court on the nature and extent of a product’s distribution, use, or misuse as well as a product’s rate of failure or defect. In Perez v. John Deere Const. Equipment Co., Plaintiff Ernesto Perez alleged that the design of John Deere’s cotton picking machine was defective; Perez had been injured after becoming entangled with the head of the machine and argued that it was defective because there was no emergency shut off switch that he could have reached after becoming entangled. The Defendant utilised survey data that estimated the average number of hours the product at issue was used per year to demonstrate that the number of accidents involving this machine was only a small portion of the total number of hours the machine was in use (Perez v. John Deere Const. Equip. Co., * WL 1529762 (Cal. Ct. App. 2005)). These product event rates, such as purchase, usage, and failure rates, measured using surveys, are key components in assessing liability and in forecasting damages. The collection of this type of information is not only important for cases that go to trial, but also for negotiations in settlements or in negotiations between carriers and those insured.
  • To determine consumers’ reliance on and materiality of product. In cases where a key issue is the nature of the exchange of information about the product and its characteristics (such as warranties, representations, warnings, etc), surveys can measure key facts about the exchange. For example, surveys may serve to address issues of who received information, what they received, how they received it, and whether the information was relied upon and/or material to some decision. In a construction defect, pre-certification case involving a roofing product, plaintiffs claimed the manufacturer misrepresented the product’s future performance. Surveys done by the defense showed that the majority of homeowners had purchased the homes from a developer, had no direct involvement in the purchase of the product and typically had not seen any warranties or marketing materials. Therefore, the manufacturer could not have misrepresented the product’s performance to the consumers as they did not receive any representations from the manufacturer.
  • To apply the “Reasonable Consumer” test of consumer expectations. Under various legal theories of liability, a product or practice may be evaluated with a “consumer expectations” test or a “reasonable consumer” test. In such instances, surveys would be used to establish consumer expectations or what a reasonable consumer might expect of a product. In a case involving the lack of battery disconnects in 1999 Ford Mustang GT’s, Plaintiff Tunnel claimed breach of implied warranty by arguing that Ford failed to meet a reasonable consumer expectation regarding a battery disconnect device. In terms of establishing reasonable consumer expectations, Tunnel offered circumstantial evidence of industry awareness of the hazard and also offered direct evidence in the form of a consumer expectations survey. The court found in alleging an unreasonably dangerous design defect, direct and circumstantial evidence of reasonable consumer expectations of safety standards is admissible to show defectiveness (Tunnell v. Ford Motor Co., 330 F. Supp.2d 707 (W.D.Va. 2004)).
  • To model “But-for” performance as a basis for damage claims. Sample surveys may also provide a basis for modeling the “but-for” conditions. In this type of use, a sample survey using hypothetical choice questions is designed and respondents are asked about their expectations, likely decisions, or the economic value of a product under specific alternative hypothetical conditions. These alternative conditions can represent the world minus the offending action. Consumers or business decisions under these alternative scenarios can then be used to make inferences about damages by comparing responses under current conditions to responses in the “but-for” world. Surveys to model “but-for” conditions are used, for example, in Cook v Rockwell International Corp. in which potential home buyers were asked to estimate the likelihood they would buy property a certain distance from a contaminated area and what discounts may be required to convince them to make a purchase if they otherwise would not (Slip Copy, (D.Colo. 2006)).
  • To analyse the requirements for class certification. Many product liability claims seek some status as class action. In seeking class action status, surveys are used to address certain key issues related to the presence or absence of numerosity, typicality, and commonality of claims in a putative class. Surveys have been used both to support claims for class certification and to defend against them. For example, in a case claiming damages due to the alleged failure to properly disclose information about the content of a product, a survey was designed to assess both numerosity and commonality among a putative class of purchasers of the product.

In situations where product liability is at issue, surveys have been used both in the context of litigation and in analyses of product liability risk for financial disclosure, insurance related issues or corporate risk assessment. As such, sample surveys are a key tool for measuring inputs into a wide range of product liability forecasts (for a more detailed summary of product liability forecasting, (see Lucy Allen, Denise Martin, Simona Heumann, Paul Hinton, and Faten Sabry, “Forecasting Product Liability by Understanding the Driving Forces,” International Comparative Legal Guide Series, Product Liability 2006, Chapter 7).
IV. Design and Implementation of Sample Surveys in Product Liability Cases
The careful design and implementation of a survey is critical to producing relevant and reliable results. Experts need to be prepared to prove their survey analysis meets objective standards of reliability to be admitted into evidence by the court. According to the Federal Judicial Center’s Manual for Complex Litigation, (See Federal Judicial Center, 1995. Manual for Complex Litigation, Third. Section 21.493, page 102) a well designed and implemented survey has the following features:

  1. the population was properly chosen and defined;
  2. the sample chosen was representative of that population;
  3. the questions were clear and not leading;
  4. the survey was conducted by qualified persons following proper interview procedures;
  5. the data gathered were accurately reported;
  6. the data were analysed in accordance with accepted statistical principles; and
  7. the process was conducted so as to ensure objectivity.

The first two features of a well designed and implemented survey, listed above, relate to the issues of population and sampling. The next two relate to questionnaire design and survey implementation and the final three issues relate to reporting and analysis of the survey results. We discuss each area in turn.
A. Population and sampling issues
In product liability cases the populations from which samples may be taken include: the entire population of products manufactured or distributed, the population of events involving the use of the product, and/or the population of people that use the product. Each is potentially large. Frequently the population may include thousands, tens of thousands and in some cases millions of products, events or people. How these populations are sampled for study is vital to whether sample survey results will provide reliable population estimates. The careful application of statistical sampling principles overcomes issues of bias or lack of generalisability. The keys to a reasonable sampling plan are:

  • clearly defining the population of interest;
  • applying sampling techniques that assure the sample is “representative” of the population; and
  • choosing a sample size that will meet the required precision or confidence interval for the extrapolation.

1. Defining the population
First, it is critical that the population of products, people, or events is properly defined. One of the major challenges to whether a sample survey is probative is whether the correct population was studied. Defining the correct population usually requires a clear understanding of the legal claim and to whom it applies. For example, in a class action lawsuit over a roofing product, the class was defined as all persons who own or owned a home with the product installed during the years of the class. A sample was designed to destructively test a sample of the roofs and then use the results to provide an estimate for the entire class. However, at the time of trial, it was determined that the sample of destructively tested homes could only be extrapolated to the homes that had this product on the roof at the time the sample was drawn. This meant that the sample could not be used to extrapolate the rate of defect back to the population of roofs that had been previously replaced by the owners. Since the class included homes that were up to 25 years old, nearly one-third of the homes that had originally existed with this product no longer had the product on the roof. This ultimately reduced by nearly one-third the number of class members who could prove their case because the sample could not be used to generalise to all roofs that had had the product.
2. Ensuring the sample is representative
The next key is to assure that the method of sampling yields a “representative” sample of the population. Perhaps the most important tool for assuring representativeness is to use random sampling. Surprisingly, this is often ignored in product liability cases. Frequently, in product liability cases, the focus is on the product that has “failed.” Thus, tests are done to establish what caused the failure and only “bad” product is actually tested. Alternatively, a few “bad” exemplars are tested and then a few exemplars that have not failed are tested. In either case, the generalisation of results from these procedures is questionable because there is no basis to determine the extent to which the samples tested are representative of the population. Any bias that is introduced by the haphazard sampling procedures may affect the accuracy of the population estimates.
Consider, for example, a construction defect case. An expert will be retained to inspect and perhaps destructively test units of the product. Based on that testing, the expert will estimate the frequency of the occurrence of defects for the entire population even though the expert has not inspected the entire population. Establishing that the defect rate in the sample is representative of the rate in the population is key to the experts’ opinion. If the procedures for selecting the sample can be shown to have been biased in any way, then the estimates of defect rates in the population will be unreliable. If, for example, the expert chose to test only products that could be easily attained, that were available at the time or that were available in a certain location (i.e. a convenience sample), then a question arises about the representativeness of these samples and the reliability of population estimates derived from the analysis. An example of this issue is seen in Dodson v. Ford Motor Co., in which a defense expert tested a sample of ignition switches. The court excluded the testimony because it believed the pool of switches was a biased sample mainly because the switches were provided to the expert by the defendant and because the evidence showed that the sample was not a random sample of such switches (Dodson v Ford Motor Co., *WL 2405868 (R.I.Super. 2006)).
While there are instances where simple selection of exemplars is useful, the most appropriate way to address sampling issues is through use of random sampling techniques. This means that sample surveys or measurements should be conducted on products or locations or people that are randomly chosen. Random sampling for the most part involves developing a list of the population elements (i.e., a list of the product that is at issue, or a list of the people that are affected) and then choosing a sample from this list using random numbers which are generated using a computer program. In many instances no complete list is available and procedures are used to develop a list that approximates the population. These procedures to develop a proxy list are often the focus of debate between experts with regard to their reasonableness in defining the population. Any bias associated with how the proxy list is created leads to debate over whether the correct population has been studied. For example, no list of everyone with a certain type of window may exist at either the manufacturer or the distributor. However, there may be a list of warranty registrations. In some instances the warranty registrations may be a sufficient proxy for the population and can be used for sampling. In other cases the experts may attempt to demonstrate that the people who fill out warranty cards are different than the people that do not, and therefore a sample based on warranty cards will be biased.
3. Determining the necessary sample size
The final key issue in sampling is sample size. There is no single right or wrong answer about how large a sample should be. What generally drives decisions about sample size is the cost to acquire the data and the level of precision required for the extrapolation. The precision of a sample is associated with what is called sampling variation. Basically, if you draw three random samples from the same population and compute the percent of respondents with a particular opinion or the percent of a product that failed, you will get three different estimates. These sample to sample differences are sampling variation. The size of this variation is an indication of the precision of an estimate. Precision is usually represented by the size of a confidence interval around an estimate. For example, a report may indicate that the percent of a product that failed is 15 percent with a confidence interval of plus or minus 4 percent at the 95 percent confidence level. This is saying that I am 95 percent confident that the true value of the population is within the range of 11 percent to 19 percent.
Sample size is important because the width of the confidence interval is affected by the size of the sample. Larger sample sizes typically will have narrower confidence intervals and therefore tend to be more precise. Small sample sizes may generate large confidence intervals and raise questions about whether the estimate is reliable or useful as evidence. For example, one court found that the sample size in a study of the risk of cancer from breast implants with a particular type of coating was too small and resulted in a very wide confidence interval that rendered the results of the study meaningless. The court wrote: “Based on the very limited sample of individuals with PUF-coated implants… the relative risk of PUFcovered implants was 1.99 with a margin of error between 0.5 and 8.0 at the 95 percent confidence level… This huge margin of error associated with the PUF-specific data (ranging from a potential finding that implants make a woman 50 percent less likely to develop breast cancer to a potential finding that they make her 800 percent more likely to develop breast cancer) render those findings meaningless for purposes of proving or disproving general causation in a court of law” (In re Silicone Gel Breast Implants Products Liability Litigation, 318 F. Supp.2d 879 (C.D.Cal. 2004); emphasis in the original).
While it is generally true that larger sample sizes result in a narrower confidence interval and therefore greater precision for an extrapolation, this relationship has diminishing returns. For example, Figure 1 shows the size of the confidence interval (on the vertical Y axis) around an estimate of 50 percent of a product failing (or of consumers with a particular opinion) for different sample sizes (along the horizontal X axis) using a 95 percent confidence level. With a small sample of 50 the confidence interval is plus or minus 14 percent meaning we are 95 percent confident the true value is between 36 percent and 64 percent. This estimate is not very precise. For a sample size of 500, this confidence interval is plus or minus approximately 4.4 percent. So the confidence interval is substantially narrower. Thus the larger sample size substantially improves the precision. However, if the sample size is increased to 1,000, the confidence interval only decreases to plus or minus 3.1 percent. So there are diminishing returns in terms of increased precision by increasing the sample size beyond a certain point. This relationship between sample size and precision is important since larger samples are more costly and time consuming to survey and analyse. It is often possible to achieve acceptable precision without needing to collect data from very large samples.

B. Questionnaire design and survey implementation Issues
The value of surveys in product liability cases also depends on the questions that are asked and the methods used to both ask and collect answers to the questions. For surveys to offer data that are probative to the case and reliable, the survey must be well designed and carefully executed. The questions must be clear, unbiased and not leading, and the interviewing or data collection procedures need to be carried out by qualified, professional staff.
In constructing questions for a survey, there are several important design considerations. First, it is important to have a clear understanding of the issues and facts of the case and how a particular question or question sequence will address those issues or facts. Second, questions should be unambiguous. Third, questions should not be written, presented or asked in a style that is leading i.e. poses the risk of potentially biased responses.
Survey questions for use in litigation need to be worded neutrally and should not be leading. Any clear evidence that responses may be a result of suggestion from the form or wording of the questions rather than the respondents’ best estimate of their opinion will lead to significant challenges by opposing experts. This includes not only the questions themselves, but the survey introductions to frame the questions, any instructions used in the survey, any transitions between questions, the order of the questions, the response categories, and any information that is shown to respondents as part of the survey.
One way in which survey answers can be potentially biased is by having the associated attorney or client heavily involved in the composition of the questions. Diamond explained in the Reference Guide on Survey Research, “the attorney should have no part in carrying out the survey. However, some attorney involvement in the survey design is necessary to ensure that relevant questions are directed to a relevant population” (Federal Judicial Center, Reference Manual on Scientific Evidence, Reference Guide on Survey Research (2d ed.2000), 229-276 at 237-238). In Tunnell v. Ford Motor Co., Plaintiff’s attorney wrote an “Information Piece” that was included in the beginning of the questionnaire. Plaintiffs maintained the piece merely presented a short description of the safety features of automobiles that were at issue in the case. Defendants alleged that the information piece was “essentially Tunnell’s counsel’s opening argument” and biased respondents from the outset of the survey (Tunnell v. Ford Motor Co., 330 F. Supp.2d 707 (W.D.Va. 2004)).
It is also important to carefully construct the description of the purpose and sponsors of the study. The standard practice is to explain the purpose of the study in a neutral way and to avoid directly naming the sponsor if that knowledge will bias or change a respondent’s answers. This is referred to as keeping the respondents “blind” to the true purpose of the survey in order to avoid introducing some type of response bias. Telling the respondent that the survey is to be used for litigation is particularly likely to lead to lower response rates and strategic answers due to respondents concerns about being involved in litigation and is therefore typically avoided. However, survey researchers have an ethical obligation to either keep respondents identities confidential or to provide sufficient disclosure that they understand what may be required of them after a survey is complete.
In addition to the questions, the survey implementation and the associated quality control procedures must be professionally done and meet standard industry practice. Sample surveys can be conducted in a variety of modes including telephone, selfadministered mail, in-person interviews, mall-intercept interviews, internet surveys and multi-mode combinations of these techniques. Each of these has strengths and weaknesses that will affect the choice for a particular case. Whatever the choice, the procedures need to be completed by qualified staff or interviewers with training in generally accepted data collection processes. Just as care must be used in designing questions to avoid bias, it is also important that the interviewers themselves do not introduce bias. If interviewers are being used to collect the data, one procedure that is used to minimise potential bias is also having the interviewers be “blind” to the purpose of the study. When both respondents and interviewers are blind to the purpose of the study then the study is referred to as “double-blind.”
Finally, in statistical surveys where people are involved in either answering questions or in allowing access to the products or locations to be tested, the response rate to the survey will not typically be 100 percent. There are almost always some parts of the initial sample that cannot be contacted, that refuse to participate, or for some other reason fail to complete the data collection process.
To the extent that responses are not received from 100 percent of the sample, then questions arise about using the sample to provide a reliable estimate for the population. This concern results from the fact that if the sampled people for whom data are not received are different from those that responded in some important way, then the estimates from the sample will be potentially biased. This is called “nonresponse bias.” A key consideration in evaluating a survey for use in product liability litigation is whether any nonresponse bias was introduced as a result of the procedures used to collect the data and the associated response rate. A survey report would generally explain what procedures were used to assess the likelihood of a nonresponse bias. This usually involves sampling non-respondents and comparing them with respondents on variables for which data is available either from other records or which can be appended from other data sources such as secondary data from demographic data companies.
C. Analysis and reporting issues
The use of sample survey data in product liability litigation also requires that the data gathered were accurately reported. Generally, sample surveys conducted by a professional survey firm will be subject to some degree of validation. This may involve having a separate firm call back survey respondents to confirm that they completed the survey or it may involve checking the survey responses against some available secondary data that could confirm responses to some questions. In addition, there will generally be checks on the internal consistency of responses within the survey.
Finally, the sample survey data and any associated measures with physical conditions need to be analysed in accordance with accepted statistical methods. There are a wide range of statistical methods that may be employed in analysing this type of data that qualify as “accepted statistical methods.” Any guidelines set forth here must necessarily be broad. However, there are a few areas that can be identified for scrutiny in assessing the analysis of a sample survey in product liability cases. These include:

  • Data Weighting. When a simple random sample is used, the estimate that is extrapolated to the population does not usually require weighted data. However, in many circumstances the population is first broken down into different subgroups (such as different cities, different manufacturing runs, different customer groups, or different demographic groups) and then random samples are drawn from the subgroups. If this data is then all combined into one sample for analysis, the data need to be weighted so that estimates from each subgroup have the proper proportional impact on the combined estimate. Improperly weighted data will affect the accuracy of any extrapolation to the population.
  • Passage of time. Many product liability cases involve products that were produced and distributed through a period of years. There may have been changes in the manufacturing process or the handling process during this period of time. The sample data should have been collected to accurately reflect various periods of time and the analysis needs to address changes in the results over time. One criticism that was raised of the data collected in Perez v. John Deere Const. Equipment Co. was that it was not clear if the usage information collected on the cotton picking machines reflected information from machines over their entire 20- year useful life or only done with initial sales in the very beginning of the model’s useful life (Perez v. John Deere Const. Equip. Co., * WL 1529762 (Cal. Ct. App. 2005)).
  • Geographical/Cultural differences. Many products are distributed and used over a wide geography. Differences across geography include such things as climate, environmental conditions, social differences in the use of products, purchase behaviors, use of communications channels and demographic profiles. Often these background factors will account for important aspects of the consumers’ understanding of and use of the products or the nature of their harm or damages. Yet frequently sample surveys will be conducted in limited geographical areas and then extrapolated to larger geographical areas without regard (or controls) for possible differences. The surveys that were relied upon in Muise v. GPU, Inc. were heavily criticised because they had been conducted on respondents who did not live in the geographic area affected by the power outage at issue. In addition the surveys were in reference to outages during different seasons than the outage at issue and did not address the occurrence of an outage on a holiday as was the case with the outage at issue (Muise v. GPU, Inc., 851 A.2d 799 (N.J. Super. A.D. 2004)).
  • Use of control groups. In many product liability claims, causation is a key factor. In the analysis, an expert may attempt to establish causation by simply showing that the purported cause is present and the purported damage is present, therefore one caused the other. However, the inference of causality requires also demonstrating that when the purported cause is absent that the same damage does not occur and that the damage does not exist in the presence of other causes. If you study a sample of older green cars and find that they all have rust, it would be incorrect to conclude that green paint causes rust. You would have to study red cars and blue cars as well. Sorting out causality generally requires the use of appropriately designed control groups. Many product liability cases improperly lack an appropriate control group to determine whether the claimed damage is simply associated with the presence of the purported cause or whether there is sufficient reason to infer that the purported cause is in fact responsible for the damage.

V. Conclusions
Sample surveys are a useful tool to address a wide range of issues in product liability litigation and forecasting. This can include more traditional views of surveys measuring consumer “expectations,” but also the use of surveys to understand purchase processes, estimate failure rates, evaluate economic choices under “but-for” conditions, and address issues in class certification. The value of sample surveys as used in litigation derives primarily from economies associated with studying random samples of people or products that can be extrapolated to the relevant population and the ability to systematically ask the same questions of the relevant population on issues that are probative to the case. These two advantages of sample surveys overcome the limitations of reliance on anecdotes and convenience samples when extrapolating or making inferences about the causes and consequences of product liability, particularly where large populations of a product, product purchasers, product users, or those exposed to a product are involved.
While a valuable tool, the uses of sample surveys are subject to many methodological issues that must be adequately addressed to ensure that the results are both reliable and likely to survive challenge. While each case will be different, the use of random sampling, the careful design and pretesting of questions and responses, and the application of analytical techniques that control for the many sources of variation in survey responses can help assure the successful use of sample surveys.
Paul Hinton and Frances Barlas are contributing authors to this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances



Federal Legislation Would Invalidate Arbitration Clauses In Franchise, Consumer, And Employment Agreements

Thursday, August 30th, 2007

30 August 2007   Article by Theodore H. Bornstein, Michael J. Lockerby, Cleta Mitchell and Kimberly J. Shur

 Since 1925, when Congress enacted the Federal Arbitration Act (FAA), contractual provisions requiring binding arbitration of disputes have been “valid, irrevocable, and enforceable,” unless legal or equitable grounds exist for revocation of the contract. 9 U.S.C. § 2. When seeking to avoid arbitration, claimants — including franchisees and dealers, consumers, and employees — often allege “fraud in the inducement.” The case law is clear, however, that a party seeking to void an arbitration agreement has the burden of proving by clear and convincing evidence that that arbitration clause itself — not just the agreement of which it is part — was fraudulently induced.1

Consistent with the federal policy in favor of arbitration reflected in the FAA, arbitration clauses are common in many franchise and distribution contracts, consumer contracts, and employment contracts.

 Such arbitration provisions would become unenforceable — after the fact — if the so-called Arbitration Fairness Act of 2007 (Arbitration Fairness Act) becomes law. This legislation, introduced July 12, 2007, would invalidate pre-dispute agreements to arbitrate “franchise,” “consumer,” and “employment” disputes as defined by the statute.

 “Franchise” disputes subject to the Arbitration Fairness Act would be defined as those arising under any contract whereby (1) a franchisee is granted the right to engage in business under a marketing plan prescribed in substantial part by the franchisor, (2) the operation of the franchisee’s business is substantially associated with a commercial symbol such as a trademark or logo, which designates the franchisor or an affiliate of the franchisor, and (3) the franchisee is required to pay a franchise fee, either directly or indirectly.

 “Consumer” disputes would be defined as those between a “person” and a seller or provider of property, services, money, or credit. To qualify as a “person,” the consumer couldnot be an organization. Only goods or services obtained for personal, family, or household purposes would qualify. Disputes about goods or services obtained for business purposes would not qualify as consumer disputes. A small business seeking to invalidate an arbitration clause could do so, however, if the agreement was between “parties of unequal bargaining power.”

 “Employment” disputes would be defined as those between employee and employer, as that relationship is defined in the Fair Labor Standards Act. The statute would not apply, however, to arbitration provisions in collective bargaining agreements.

 Under current law, whether a particular claim is subject to arbitration is often determined by the arbitrator, unless a contrary intention to have a court decide that issue appears in the arbitration agreement.2 Under the Arbitration Fairness Act, courts applying federal law would decide the enforceability of arbitration provisions.

Because the statute would apply retroactively to contracts entered into before its enactment, the Arbitration Fairness Act would effectively rewrite existing contracts. It also would rewrite existing federal law by making the following “findings” about the current statute, the FAA, as interpreted by the courts:

  1. The FAA was intended to apply to commercial entities of similar sophistication and bargaining power.
  2. Various U.S. Supreme Court decisions have since broadened the applicability of the FAA to extend to parties of very disparate economic power, so that millions of consumers and employees must submit disputes to binding arbitration.
  3. Many of these consumers and employees may not have understood the arbitration clauses in agreements they accepted, or had little choice in accepting the agreements.
  4. Private arbitration companies often are under pressure to devise systems that favor paying corporate customers — a source of repeat business.
  5. Mandatory arbitration implies no meaningful judicial review of arbitrators’ decisions. This “undermines the development of public law for civil rights and consumer rights,” and leaves arbitrators virtually free to “ignore the law and even their own rules.”
  6. Mandatory arbitration is not “transparent” unlike the judicial system, where written decisions are publicly available and decision-makers can be held accountable for their actions.
  7. Many arbitration clauses contain provisions that “strip individuals of substantive statutory rights, ban class actions, and force people to arbitrate their claims hundreds of miles from their homes.” Too many courts uphold “egregiously unfair mandatory arbitration clauses,” because federal policy supposedly favors arbitration.

Under current law, only automobile dealers and other motor vehicle franchisees are exempt from the FAA, and only when they are challenging arbitration provisions in motor vehicle franchise agreements. (Many dealers require their customers to arbitrate all claims.) Under the Motor Vehicle Franchise Contract Arbitration Fairness Act (MVFCAFA), enacted in 2002, arbitration provisions in motor vehicle franchise agreements are enforceable “to resolve a controversy arising out of or relating to such contract … only if after such controversy arises all parties to such controversy consent in writing to use arbitration to settle such controversy.” 15 U.S.C. § 1226(a)(2). Ironically, the rationale for the MVFCAFA would — if the Arbitration Fairness Act becomes law — be extended to contracts between motor vehicle franchisees and their customers.

 Reasonable minds can and do differ as to the merits of arbitration as a method of alternative dispute resolution. Many franchisors and manufacturers, however, have made the business judgment that arbitration is preferable to litigation of disputes with franchisees, dealers, and distributors. In reliance on the long-standing federal policy in favor of arbitration reflected in the FAA, these franchisors and manufacturers have included arbitration provisions in their standard form franchise, dealer, and distribution contracts.

 Because of the importance of arbitration clauses to many franchisors and manufacturers, Foley’s Distribution & Franchise and Public Affairs Practices will be monitoring the progress of the Arbitration Fairness Act. The Senate version of the bill, S. 1782, was sponsored by Senator Russell Feingold (D-WI) and Senator Richard Durbin (D-IL). Its House of Representatives counterpart, H.R. 3010, was sponsored by Representative Hank Johnson (D-GA). The bills, S. 1782 and H.R. 3010, have been referred to the Senate and House Judiciary Committees, respectively.

1. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404 (1967)
2. First Options v. Kaplan, 514 U.S. 938, 943 (U.S. 1995)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances


Thursday, August 30th, 2007

See statute spelling out method of execution in Ky. KRS 431.220 below.
Aug. 30, 2007
     Frankfort, KY – Today, the nine media representatives, who will witness the execution of Ralph Stevens Baze, scheduled for Tuesday, Sept. 25 at the Kentucky State Penitentiary, have been identified.
     As directed by KRS 431.250, nine representatives of the news media may witness an execution. The news media listed in the statute are as follows: one (1) representative from the daily newspaper with the largest circulation in the county where the execution will be conducted; one (1) representative from Associated Press Wire Service; one (1) representative from Kentucky Network, Inc.; three representatives for radio and television media within the state; and three representatives for newspapers within the state. The three broadcast media are selected by the Department of Corrections through a drawing. The three newspapers are selected by the Kentucky Press Association. 

     The three broadcast media witnesses selected during a drawing at the Department of Corrections include: Bennett Haeberle, WDRB Fox 41, Louisville; Greg Stotelmyer, WTVQ-TV Channel 36, Lexington; and Richard DeVayne, WLEX-TV, Channel 18, Lexington. The Department also drew the names of two alternates in case any of the above media representatives are unable to attend the execution. The alternates are Keith Farrell, WWKY-FM, Madisonville; and Julie Anne Williams, WCLU Radio, Glasgow.

     The three newspaper representatives selected by the Kentucky Press Association include: Jessie Halladay, The Courier-Journal, Louisville; Jeff Moreland, The Springfield Sun; and James Cook of The Clay City Times. Two names were also drawn as alternates: Ken Hart, The Independent, Ashland; and Jennifer B. Brown, Kentucky New Era, Hopkinsville.

     The representative from the Paducah Sun (the daily newspaper with the largest circulation in the county where the execution will be conducted) will be Bill Bartleman. The representative from the Associated Press will be Brett Barrouquere, and the representative from the Kentucky News Network will be Paul Miles.
     The media witnesses are required to participate in a press briefing and respond to media questions immediately following the execution
 The Kentucky Statute spelling out execution procedures:
KRS 431.220 Execution of death sentence.
(1) (a) Except as provided in paragraph (b) of this subsection, every death sentence
shall be executed by continuous intravenous injection of a substance or
combination of substances sufficient to cause death. The lethal injection shall
continue until the prisoner is dead.
(b) Prisoners who receive a death sentence prior to March 31, 1998, shall choose
the method of execution described in paragraph (a) of this subsection or the
method of execution known as electrocution, which shall consist of passing
through the prisoner’s body a current of electricity of sufficient intensity to
cause death as quickly as possible. The application of the current shall
continue until the prisoner is dead. If the prisoner refuses to make a choice at
least twenty (20) days before the scheduled execution, the method shall be by
lethal injection.
(2) All executions of the death penalty by electrocution or lethal injection shall take
place within the confines of the state penal institution designated by the Department
of Corrections, and in an enclosure that will exclude public view thereof.
(3) No physician shall be involved in the conduct of an execution except to certify
cause of death provided that the condemned is declared dead by another person.
Effective: March 31, 1998


Final Award Entered in Fen Phen Civil Case. Appeal Likely.

Thursday, August 30th, 2007

By Paul A. Long Ky Post   Aug. 30, 2007
Three Central Kentucky lawyers accused of stealing tens of millions of dollars from their clients in a lawsuit over the diet drug combination fen-phen may soon have to start accounting for that money.
A senior judge who previously ruled that the three breached their fiduciary duty and should return some $42.5 million has made his order final.
“We’ve waited a long time for this,” said Angela Ford, who has sued the trio on behalf of their former clients.
“We’ll begin an asset discovery very quickly.”
It’s likely that the final order by Senior Judge William Wehr will be appealed.
But, Ford said, the three would have to post a bond equal to the $42.5 million to stop her from asking for information about their assets.
She will not, however, be able to seize anything until the case is settled.
Melbourne Mills, 76, of Versailles; and William Gallion, 56, and Shirley Cunningham Jr., 52, both of Lexington, have been in the Boone County Jail since a federal judge in Covington revoked their bonds nearly two weeks ago in the federal criminal case against them.
Each is charged with a single count of fraud.
Both the federal criminal and the state civil cases involve actions in the $200 million settlement of a class action law suit against the makers of fen-phen.
Already, Mills, Gallion, and Cunningham have had their law licenses suspended, and the jurist overseeing the original case, former Boone Circuit Judge Jay Bamberger, chose to resign from the state senior judge program and lose a portion of his pension rather than face additional sanctions.
Wehr, who now has the case, ruled in March 2006 that the three attorneys breached their fiduciary duties to their clients.
Attorneys for the three lawyers either could not be reached or declined comment Wednesday.
But previous court documents show they argued strenuously against Wehr’s order, and are likely to appeal it.
It “evolves from the March 8, 2006, order of partial summary judgment,” attorney Michael Gay said in a court documents arguing against Wehr’s ruling.
“That order by this court was wrong when entered, continues to be wrong … and has now been indirectly relied on by another judge in an ancillary proceeding to deprive these defendants of their constitutionally protected right to liberty.”
The lawyers, Gay argued, were paid under an agreement with their clients that Bamberger approved.
Wehr’s original order was ill-timed, and prevents the trio from defending their actions, he said.
“Such an order forever altered the landscape of this litigation,” he said.
“Such an order precluded these defendants from presenting evidence that they did not breach their fiduciary duties. … Such an order relieved the plaintiffs of their burden to prove how these defendants’ alleged breaches, if any, damaged them. … Such an order, which appears to be contrary to the well-established law of this commonwealth, appears to be clearly reversible.”
Another claim in Ford’s lawsuit is made against Cincinnati attorney Stan Chesley, who negotiated the settlement. Chesley took 10 percent of the settlement as a fee, which Wehr ruled was too much.
A trial on how much Chesley should return was scheduled for next month, but Wehr agreed to delay it while attorneys exchange additional evidence.

Ethics Commission investigation clears Sen. Williams

Thursday, August 30th, 2007

Ethics Commission justifies finding on basis that Senator Williams did not know what his staffers were doing.  See statute below.

 By Tom Loftus   The Courier-Journal   Aug. 30, 2007
FRANKFORT, Ky. — Senate President David Williams was cleared yesterday of an allegation of improperly soliciting lobbyists to help raise money for Senate Republican candidates.
 In a nine-page order that was approved unanimously, the Kentucky Legislative Ethics Commission said “there is not probable cause to believe that Senator Williams intentionally violated the Code of Legislative Ethics.”
 Williams, a Burkesville Republican, said in a statement that he was pleased to be “cleared of any violation … by unanimous vote.”
 His spokeswoman, Sarah Schardein, said there would be no further comment.
The complaint was filed by Richard Beliles, chairman of Common Cause of Kentucky.
 He said he was “concerned that this order doesn’t do much to stop both Republicans and Democrats from devising ways around these ethics and fund-raising laws.”
 Commission Chairman George Troutman acknowledged after yesterday’s meeting that, “from the outside looking in,” circumstances surrounding the fundraising effort raised questions.
 “This was very sloppily handled, and I can see why a complaint was brought by Mr. Beliles,” Troutman said. “But … the evidence and the testimony presented to this commission did not show any violation of the law.”
 At issue was a May 23 Louisville luncheon held by Williams. The Courier-Journal reported two days after the event that lobbyists and others were given a “commitment form,” asking them to pledge to give or raise as much as $50,000 for two committees that help pay for the campaigns of Republican Senate candidates.
Legislators are banned by the ethics code from asking lobbyists to help raise money for such committees. But the commission’s order blamed the solicitation form on Williams’ staffers who helped plan the lunch.
 “There is no evidence that Senator Williams actually solicited a lobbyist,” the commission said.
 The order was approved by all seven commission members taking part in yesterday’s meeting, which was conducted via teleconference. One member was absent, and one position is vacant.
 Beliles said he had “trouble believing David was so completely naïve and unaware of many details of this. To blame certain things on unnamed staffers seems too easy a way out.”
 The complaint alleged that Williams’ role in the lunch violated the code of ethics primarily because it amounted to a legislator soliciting lobbyists to help raise money for the two Senate Republican funds.
 The commission investigation found that Williams invited 237 people to the lunch, 66 of whom were registered lobbyists.
 Its order does not say how many people actually attended the lunch, at which Williams was the main speaker. But the order says about half were lobbyists.
The commission’s order said Williams testified that he never saw the commitment form before the lunch and that “he had never solicited a lobbyist to do anything.”
The order said Williams told the commission that the forms were given to lobbyists at the lunch so “they could inform people that we’re having this (fundraiser) and deliver information to their clients.”
 Distribution of the form, coupled with some of Williams’ remarks at the lunch, “led some lobbyists in attendance to conclude that they were being asked to raise funds.”
 But the commission order said, “There was credible testimony that Senator Williams did not specifically ask lobbyists to do so.”
 The commission found that the form was prepared by two members of Williams’ Senate staff and was “not appropriate” for legislative fundraising purposes.
“Moreover, they were prepared in haste, without consultation with Senator Williams, by an individual or individuals who knew little of the ethics law and who did not attempt to find out more,” the order said.
 The order does not name the individuals involved. But the commission’s staff confirmed that the two were Becky Harilson and Brad Metcalf.
 The commission order says Harilson and Metcalf “worked on their own time in this endeavor and were apparently motivated to do so to help ensure the success of their party in races for the Kentucky Senate, rather than by direction of Senator Williams.”
 The commission’s order says an investigator interviewed 23 people who attended the lunch. And two weeks ago the commission heard testimony during a closed-door hearing.
 Williams testified and, as provided by commission procedures, was permitted to sit in during the testimony of staff members, lobbyists and Beliles.
 The purpose of the lunch was to prepare for a July fundraising dinner that was to feature a Republican presidential candidate as speaker. That dinner was postponed and has not been rescheduled. 

LawReader provides the applicable statute that prohibits accepantance of a campaign contribution from a lobbyist.

KRS 6.767 Prohibition against acceptance of campaign contributions from legislative agents — Penalty.
A member of the General Assembly, candidate for the General Assembly, or his campaign committee shall not accept a campaign contribution from a legislative agent.
Violation of this provision is ethical misconduct. It shall be a complete defense if the legislator or candidate receives a campaign contribution from a legislative agent, which fact is unknown to the legislator or candidate at the time of receipt, if the legislator or candidate either returns the contribution within fourteen (14) days of receipt and within fourteen (14) additional days makes that fact, together with the name of the contributor, amount of the contribution, and the date of return or payment known, in writing to the commission. It shall also be a defense if a legislator or candidate receives a campaign contribution from a legislative agent whose name does not yet appear on the list of legislative agents furnished to the Legislative Research Commission if the legislator or candidate returns the campaign contribution within fourteen (14) days of the Legislative Research Commission’s receipt of the list bearing the name of the legislative agent and makes the written disclosure to the commission required in this subsection. The fourteen (14) day time periods shall be tolled upon the filing with the commission of a request for
an advisory opinion regarding the campaign contribution. Upon the issuance of the opinion or decision not to render an opinion, the fourteen (14) day period shall resume.
Effective: September 16, 1993
History: Created 1993 (1st Extra. Sess.) Ky. Acts ch. 4, sec. 17, effective September
16, 1993.

Chief Justice predicts Legislation in 2008 to open Child Abuse Hearings to Public

Wednesday, August 29th, 2007

Kentucky Supreme Court Chief Justice Joseph Lambert, speaking to a gathering of 600 at the first Kentucky Summit on Children, said Tuesday that he expected legislation to be introduced at the 2008 General Assembly that would allow judges to open proceedings for dependent, neglected and abused children.  

 Currently Kentucky courtroom proceedings for those children are closed and the record sealed. 

Many have supported this practice of closing these hearings on the theory that closed child abuse hearings  protected the child.  That may be right, but the practice also protects the abusive parent. 

Judges will retain discretion in closing hearings, but must justify their action.
 Louisville Courier Journal Editorial   Aug. 30, 2007
 The good news coming out of Chief Justice Joseph Lambert’s youth summit in Louisville is that a proposal is expected to emerge in the 2008 General Assembly, permitting judges to open some juvenile proceedings.
This would be a huge step forward.
The recent scandal involving state workers who lied in court and falsified documents, as they pursued custody cases, demonstrated clearly the need for openness to protect kids and their families. Then-Inspector General Robert Benvenuti, in his report, urged that some court sessions involving such issues be open.
Rep. Tom Burch, D-Louisville, a longtime youth advocate and chairman of the House Health and Welfare Committee, conceded that not all judges buy into the idea, but he noted that closed door court sessions and locked files are used by some social workers as “an escape clause,” relieving them of the responsibility to disclose their actions publicly. And that’s just intolerable.
Opponents of opening juvenile files and proceedings posture as protectors of the defenseless. But in fact, real protection for youngsters in the court system is transparency.
Nobody is talking about forcing open every juvenile case to public review. Judges would retain the option of closing any court sessions and any case files, as they see fit.
However, law mandating such a new approach should assume that all juvenile cases will be open, unless a judge decides otherwise and explains why.
Children are far more likely to be victimized by the inefficiencies of judicial and bureaucratic process, or by the petty resorts to personal vendetta and local political influence in juvenile matters, than they are by exposure to public inquiry and review.
Some fear media exploitation of juvenile cases for sensational coverage, but fortunately Kentucky has no significant history of this.
Chief Justice Lambert said this week, in the Lexington Herald-Leader, “We’re getting close to a consensus that there needs to be greater access to court proceedings. There’s a lot of talk about it.”
What’s needed next is action.

Shannon Raglands Book, The Thin Thirty, Draws Raves from Famed Sportswriter Earl Cox

Wednesday, August 29th, 2007
This  review by Earl Cox, the dean of Kentucky sportswriters , endorses Shannon Raglands tell all book -The Thin Thirty- about the Coach  Bradshaw years at UK

Excerpts from the Earl Cox review:   August 30, 2007

Heres a UK football story that may be hard to believe
If I hadn’t lived through the University of Kentucky’s shameful Thin Thirty Days, I would swear that a new book, -The Thin Thirty,- is a work of fiction. But you couldn’t make up what a Louisville author, Shannon Ragland, has written about the shameful period when Charlie Bradshaw coached UK and so brutalized the UK football players that all but 30 quit the team. 

Shortly after Bradshaw returned to Lexington to coach his alma mater, I had a conversation with him in front of the Wildcat Bowling Lanes next to Memorial Coliseum. He said that Dr. Ralph Angelucci, the team physician and a member of the UK trustees, told him that the first thing the coach had to do was run off the gays, including actor Rock Hudson, who were dating some of the football players.

You read that right.

Can’t win with mules
And Bradshaw went to work. He ran off the homosexuals. The party sites switched to Richmond and involved some of the Eastern players. Hudson helped one of the EKU players, Harvey Yeary, make it big in Hollywood with a new name: Lee Majors!

But Bradshaw also ran off most of his UK football players. All but 30 – thus The Thin Thirty.

I think it was a high school coach named Jim Pickens who told Bradshaw that he had run off the thoroughbreds and was left with mules – “and you can’t win on Saturdays with mules.� He also told him that Bradshaw shouldn‘t ever bother to recruit Bowling Green players again because he had run off Dale Lindsey, probably the best player Bowling Green had ever produced. Lindsay finished at WKU and was a star linebacker in the NFL.

Bear Bryant Jr.
I walked with Bradshaw one day from the Coliseum across the Avenue of Champions to Stoll Field. I told him I was worried about him and I thought what was wrong with him was that he was trying to be someone else – Bear Bryant Jr.

He objected violently to that.

That first season I flew on the UK team plane to a game with the University of Detroit. I have never seen such a beaten-down group of individuals.
Actually there were only 29 on the trip. I was the last one on the plane and I couldn’t see an empty seat. But Junior Hawthorne, a big tackle, made his teammates squinch up in the back to make room for me.

Homer Rice, a friend who turned Fort Thomas Highlands into a football powerhouse, was a mild-mannered man who was a Bradshaw assistant. He called one day at The Courier-Journal. He said things were so bad that he had told Bradshaw that he would quit if the mistreatment of players didn’t stop.

Rice stayed.

Gambling on Xavier?
Earl Ruby, the legendary Courier-Journal sports editor, and I flew on the team plane to Knoxville for the season-ending Kentucky-Tennessee game in 1962. UK won 12-10 and the Wildcats finished the season 3-5-2. Bradshaw lasted six more seasons before he was replaced by the luckless John Ray, who did make a major contribution to UK by being the catalyst for the building of Commonwealth Stadium.

In addition to the sex, Shannon Ragland discovered something I had never heard. He writes that some of the Wildcats tried to throw the Xavier game (the week before Tennessee). Xavier upset the Cats 14-9.

Ragland has done thorough research. I told him that his book could be a good textbook for use by colleges. It should be required for football players planning to be coaches.

Ragland played in two state tournaments as a member of the Eastern High team led by Felton Spencer. He is a graduate of WKU and also of UK’s law school.

His book is $18.95. It’s on sale now at Joseph Beth in Lexington, and will be available in Louisville later

Greg Stumbo announces that he is exploring a race for U.S. Senate in 2008 against Mitch McConnell.

Wednesday, August 29th, 2007

Stumbo has posted a web site for an exploratory look at running for the U.S. Senate in 2008.




I am writing you because I recently formed an Exploratory Committee to look into the possibility of running for US Senate against Mitch McConnell. After spending twenty-four years in the Kentucky State House, nineteen as Majority Floor Leader, and the last four as Kentucky’s attorney general, I don’t recall ever feeling the sense urgency to serve that I do now. We desperately need someone in Washington who cares more about Kentucky’s hardworking families and the America we leave our children than he does about Karl Rove’s “permanent majority” and George W. Bush’s destructive agenda.

Now more than ever, Democrats need to unite and send a clear message to the Senior Senator from Kentucky that enough is enough. Mitch McConnell has blindly followed President Bush regardless of the cost – political, financial, and otherwise – and without heeding the wishes of his constituents and the nation as a whole.

So far I am the only person who has stepped forward as a potential candidate to take on the McConnell machine, and I need your help. Your contribution to my Exploratory Committee would be a step towards removing the man personally responsible for ousting Senator Tom Daschle and blocking the Senate vote to bring our troops home.

Mitch McConnell gave a generic stump speech a couple of weeks ago which he ended by saying he was, “outta time.” Let’s show him that we agree. Please give whatever you can today.

Thanks so much for your time and consideration.


Greg Stumbo


Suggested New Agenda for U.S. Dept. of Justice

Wednesday, August 29th, 2007

 10 priorities that would help the next attorney general guide the department back on course:

By Jamie S. Gorelick   August 29, 2007
The next attorney general will inherit a demoralized Justice Department that has been cut adrift from its historical values and well-honored traditions. New leadership offers an opportunity for Justice to return to its best traditions under both Democrats and Republicans. Here are 10 priorities that would help the next attorney general guide the department back on course:

·  Restore credibility and comity with Congress. Having the backing and support of Congress is critical. Lawmakers will give Justice the room it needs if they believe that the attorney general and his or her subordinates are straightforward in their dealings and open to legitimate oversight.

·  “Take care that the laws be faithfully executed.” Every president promises to ensure that the government adheres to the law and the Constitution. The Justice Department’s Office of Legal Counsel has historically been — and needs to be — the voice for the rule of law in the president’s deliberations, providing an honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. This mandate applies with special force where the office’s advice is unlikely to be subject to review by the courts. Where an opinion is so widely ridiculed that the department has to withdraw it, as was the case with the first “torture memo,” confidence in the department’s fealty to the law is undermined.

·  Bring the professionals back. The department’s excellence has always depended on the talent and energy of its dedicated career professionals. Today, it has a superb corps of senior career lawyers who have largely been excluded from deliberations on major cases and policies, to the detriment of the department and its work. Bringing these professionals back into the conversation by restoring the relationship between political appointees and career staff will improve morale and the quality of decisions.

·  Depoliticize hiring. Stop considering applicants’ political backgrounds in the hiring and promotion of career lawyers. Equally important, political appointees should have experience in the areas they are overseeing, rather than experience as political operatives. If political appointees have ample relevant experience, they will command the respect of career lawyers by virtue of their intellect and judgment.

·  Restore order to the relationship with the White House. Before 2001, the White House had accepted limitations on its communications with the Justice Department so the American people would be assured that the department’s enforcement decisions were based on law and facts. Justice should reestablish this expectation by limiting talks on enforcement matters between the White House and the department from the hundreds who can discuss these things today. Communications should be between only the White House counsel and his or her deputy and the attorney general and his or her deputy and senior aides.

·  Keep politics out of public integrity cases. Cynicism about department decisions is most likely to arise when Justice prosecutes a politician — or decides not to — and when decisions about alleged election fraud are announced just before elections. The department should return public integrity decisions to career prosecutors and reinstate the long-standing practice of refraining from announcing any election-related investigation or prosecution in the period before an election.

·  Maintain vigilance against terrorism. Use the tools the department has been given to help keep our country secure. The new National Security Division, for example, must work seamlessly with traditional crime-fighters.

·  Fight crime. The department’s historic mission as the nation’s leading crime-fighter is in jeopardy. For the first time in decades, violent crime is on the rise. Justice should seek money for the hiring of local police — such as the Clinton-era COPS program that put 100,000 police officers on our streets. It should also fund the many open slots for federal prosecutors or eliminate those positions, if they aren’t necessary, rather than leave them on the books without resources.

·  Respect rights. Justice needs to show that it is worthy of the power and authority it has been given. It has committed to policing itself in the exercise of its powers under the USA Patriot Act and Foreign Intelligence Surveillance Act. The new attorney general should make sure it does so.

·  Lead with values. The attorney general should be an inspiring figure who reminds us of the values that make us strong: secure communities and vibrant individual rights. He or she should be a voice for the rule of law, which demands thoughtful and fair law enforcement and a steadfast commitment to our most cherished liberties.

Just outside the attorney general’s office is the inscription “The United States wins its point whenever justice is done its citizens in the courts.” Those words should remind the next attorney general that even when the department loses a case, it fulfills its mission so long as justice has been served.

The writer, an attorney with Wilmer Hale, was deputy attorney general in the Clinton administration from March 1994 through March 1997.