Archive for June, 2009

Government Patent Law Rewards Lawyers Who File Claims Against Patent Holders who represent that their expired patents are still valid. Government gives half of damage awards to party suing to enforce patent law.

Sunday, June 14th, 2009

Government Patent Law Rewards Lawyers Who File Claims Against Patent Holders who represent that their expired patents are still valid.  Government gives half of damage awards to party suing to enforce patent law.

 

A recent ruling on an obscure, century-old statute has opened the door for people familiar with the finer points of patent law to sue companies that stamp their products with expired patent numbers.

Several recent lawsuits have used this law to wind awards. Llawyers have found a financial windfall through the nearly forgotten law, and the Justice Department says they have a case.

The ruling in federal court in Alexandria appears to be the first of its kind upholding the constitutionality of a law allowing anyone to sue in the name of the government if they have evidence that a company is guilty of “false markings” — namely, claiming patent protections that have expired or never existed.

The person who sues gets to keep half of any money awarded, with the rest going to the government. Damages of up to $500 per violation are allowed, which for mass-produced items with “Patent” stamped on every product could theoretically run into billions of dollars.

The Associated Press reported:

Despite the financial incentive to sue, lawyers in the Virginia case say no one other than businesses with a financial stake availed themselves of the law.

No one, that is, until Matthew Pequignot.

A Washington patent attorney, Pequignot noticed the patent marks on the lid to his daily cup of coffee, did some research and found that the lid’s maker, Solo Cup Co. of Highland Park, Ill., was continuing to claim patent protections for disposable lids that had expired nearly 20 years ago. Depending on a variety of factors, most patents expire after a set period of time, often 14 to 20 years.

In 2007, he sued Solo Cup, which makes plastic cups and also supplies disposable cups and lids to retailers including Starbucks and McDonald’s.

Pequignot says the lawsuit addresses a problem in the patent community: companies using false marks to make products look impressive or to scare off competitors, who must do significant legal work to research the patents.

Pequignot followed the Solo Cup case by suing razor company Gillette, owned by Cincinnati-based Procter & Gamble Co.(2 of 2)



Gillette is seeking to dismiss the case, arguing Pequignot shouldn’t be allowed to sue unless he can show Gillette acted with “an intent to deceive.”


“False markings claims come cheap: They damage defendants’ reputations. … Numerous complaints can be filed at almost no cost,” Gillette’s lawyers wrote.

In the Solo Cup case, court papers indicate Pequignot offered to settle for $9 million. Instead, Solo Cup argued that allowing a private citizen to sue on behalf of the government is an unconstitutional violation of separation of powers. Solo Cup also argued that the law violates constitutional requirements that a plaintiff must suffer some type of harm to bring a lawsuit.

U.S. District Judge Leonie Brinkema concluded in March that the provision allowing Pequignot to sue in the name of the government is constitutional.

Despite Brinkema’s ruling, there are still concerns over the law’s use. Last month, a federal judge in New York tossed out a similar lawsuit filed by a patent attorney who sued Brooks Brothers over expired patents on its “original Adjustolox” bow tie.

The judge ruled that if the plaintiff, Raymond E. Stauffer, wants to sue on behalf of the United States, he must prove the government suffered harm, a standard he said Stauffer failed to meet.

Brinkema, on the other hand, said in her ruling that the United States suffered harm by the very fact that its laws were being broken.

The Justice Department is siding with Brinkema. On May 29, the government moved to intervene on Stauffer’s behalf and said the New York judge’s analysis is flawed.

Neil Friedman, the lawyer who represented Brooks Brothers, likened Stauffer and Pequignot to “bounty hunters” looking to collect an easy payoff. Friedman said he is aware of several similar lawsuits that have been filed since Pequignot’s and Stauffer’s cases.



Gillette is seeking to dismiss the case, arguing Pequignot shouldn’t be allowed to sue unless he can show Gillette acted with “an intent to deceive.”

“False markings claims come cheap: They damage defendants’ reputations. … Numerous complaints can be filed at almost no cost,” Gillette’s lawyers wrote.

In the Solo Cup case, court papers indicate Pequignot offered to settle for $9 million. Instead, Solo Cup argued that allowing a private citizen to sue on behalf of the government is an unconstitutional violation of separation of powers. Solo Cup also argued that the law violates constitutional requirements that a plaintiff must suffer some type of harm to bring a lawsuit.

U.S. District Judge Leonie Brinkema concluded in March that the provision allowing Pequignot to sue in the name of the government is constitutional.

Despite Brinkema’s ruling, there are still concerns over the law’s use. Last month, a federal judge in New York tossed out a similar lawsuit filed by a patent attorney who sued Brooks Brothers over expired patents on its “original Adjustolox” bow tie.

The judge ruled that if the plaintiff, Raymond E. Stauffer, wants to sue on behalf of the United States, he must prove the government suffered harm, a standard he said Stauffer failed to meet.

Brinkema, on the other hand, said in her ruling that the United States suffered harm by the very fact that its laws were being broken.

The Justice Department is siding with Brinkema. On May 29, the government moved to intervene on Stauffer’s behalf and said the New York judge’s analysis is flawed.

Kentucky’s Highest Court Ruled in 1931 that Constitution Did Not Outlaw Gambling…only lotteries…this ruling allowed pari mutual betting at race tracks…why does this myth continue?

Sunday, June 14th, 2009

 

Kentucky’s Highest Court ruled in 1931 in the case of Commonwealth v. Kentucky Jockey Club, Inc., 238 Ky 739, 38 SW2d 987 (1931) that Section 226 of the Kentucky Constitution, which is often cited as outlawing casinos and slots in Kentucky. The Court said this section only outlawed “lotteries of the type familiar” in 1891 at the time of the adoption of the current constitution.

The Court drew directly upon the Debates of the Constitutional Convention and found:

At the time section 226 was being considered in the convention that framed the Constitution, an amendment was proposed forbidding every species of gambling. Volume 1. Debates of Constitutional Convention p.1172. The delegate who proposed the amendment was asked whether his proposition embraced the prohibition of betting upon the speed of horses, to which he responded that it was his purpose to forbid all species of gambling and all games of chance in every conceivable form. He argued that all gambling was equally wrong, and that it was unfair to denounce gambling in the form of a lottery and to countenance it in other forms, such as betting upon horse races, and the like. The delegate from Lexington argued that it was not the appropriate place to deal with pooling privileges upon race courses, and other forms of gambling, because lotteries theretofore had been licensed by the Legislature, and the object of the pending section was not to deal with any other species of gambling, but to prohibit the Legislature from granting licenses to lotteries. The amendment was rejected, thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time.”

 

The Attorney General’s opinion issued by Greg Stumbo concludes, “The framers of the Constitution clearly rejected the inclusion of other forms of gaming within the prohibition of “lotteries”, as defined above, when Ky. Const. Section 226 was passed. Hence, “lotteries” are constitutionally distinct from other forms of gambling.”

The AG’s opinion cites a ruling of the old Court of Appeals (then the highest court in Kentucky) handed down in l931 which demonstrates that the prohibition of other forms of gambling were considered by the Constitutional Convention of l891 and rejected. In that opinion the court upheld the legality of pari-mutual betting on horse races and found it was one of the other forms of gambling not prohibited by Section 226:

There is case law that supports the conclusion that Kentucky does not need a Constitutional Amendment to permit the licensing of Casino Gambling

Sunday, June 14th, 2009

 

By LawReader Senior Editor Stan Billingsley – Feb. 7, 2008

 

Gov. Beshear made his support for a constitutional referendum to allow casino gambling a mainstay of his successful campaign for Governor in 2007.  That issue as advanced by Gov. Beshear is based on the assumption that a constitutional amendment is necessary to permit the legislature to authorize and license casino gambling in Kentucky.

 

The belief that a constitutional amendment is required is based on an interpretation of Section 226 of the Ky. Constitution which has language that from l891 until l992 prohibited the establishment of “lotteries” in Kentucky.  In l992 the public adopted a constitutional amendment that permits a state operated lottery.

 

Section 226 of the Kentucky constitution did not outlaw other forms of gambling in the 1891 section or in the amended section adopted in l995.

 

There is no specific provision of the Ky. Constitution that prohibits gambling in general, or that specifically prohibits other types of gambling including casino type gambling. 

 

If gambling was prohibited by the constitution we would ask, how is it that pari-mutual betting has been historically allowed?  The obvious answer is that pari-mutual betting at race tracks is a statutory creation and that casino gambling can also be authorized by an act of the legislature.

 

In fact the legislature has through the adoption of KRS Chapter 528 outlawed many forms of gambling.  These statutory enactments can just as easily be amended by the legislature to permit casino style gambling.

 

The statutes that outlaw casino style gambling are found at:

 

KRS 528.010 Definitions for chapter.

KRS 528.020 Promoting gambling in the first degree.

KRS 528.030 Promoting gambling in the second degree.

KRS 528.040 Conspiracy to promote gambling.

KRS 528.070 Permitting gambling.

KRS 528.080 Possession of gambling device.

 

Conclusion: Since the legislature can regulate gambling under its police powers, it can authorize gambling under the same authority.

 

   In 2005, then Attorney General Greg Stumbo was asked by State Senator Ed Worley (D)-Richmond to review this very issue.

 

That opinion has been largely neglected, we believe, because the public perception, which was wrong, strongly concluded that the constitution clearly prohibited casino gambling.  It one takes the time to actually read Section 226, that conclusion is debunked.

Perhaps it is time to pull up that AG opinion (OAG 05-003) and really read what it says.

We have done so, and we find the arguments persuasive, and well founded in the law.

The opinion notes that when the l891 constitution was adopted that many forms of gambling were occurring throughout Kentucky.  There was however a long history of abusive lottery schemes in which the prize was often not given out even though the members of the public had bought a lottery ticket.  These abusive unregulated lottery schemes were the target of Section 226.  

The opinion concludes, “The framers of the Constitution clearly rejected the inclusion of other forms of gaming within the prohibition of “lotteries”, as defined above, when Ky. Const. Section 226 was passed. Hence, “lotteries” are constitutionally distinct from other forms of gambling.”

The opinion cites a ruling of the old Court of Appeals (then the highest court in Kentucky) handed down in l931 which demonstrates that the prohibition of other forms of gambling were considered by the Constitutional Convention of l891 and rejected. In that opinion the court upheld the legality of pari-mutual betting on horse races and found it was one of the other forms of gambling not prohibited by Section 226:

Opinion OAG 05-003:  “The legal issue of the scope of the prohibition in Section 226 was not squarely presented to Kentucky’s Court of Appeals until 1931 in the case of Commonwealth v. Kentucky Jockey Club, Inc., 238 Ky 739, 38 SW2d 987 (1931).

The Court drew directly upon the Debates of the Constitutional Convention and found:

At the time section 226 was being considered in the convention that framed the Constitution, an amendment was proposed forbidding every species of gambling. Volume 1. Debates of Constitutional Convention p.1172. The delegate who proposed the amendment was asked whether his proposition embraced the prohibition of betting upon the speed of horses, to which he responded that it was his purpose to forbid all species of gambling and all games of chance in every conceivable form. He argued that all gambling was equally wrong, and that it was unfair to denounce gambling in the form of a lottery and to countenance it in other forms, such as betting upon horse races, and the like. The delegate from Lexington argued that it was not the appropriate place to deal with pooling privileges upon race courses, and other forms of gambling, because lotteries theretofore had been licensed by the Legislature, and the object of the pending section was not to deal with any other species of gambling, but to prohibit the Legislature from granting licenses to lotteries. The amendment was rejected, thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time.” Id. at 993. “

 

     The Attorney General’s Opinion makes a compelling and we think convincing argument that the state is not prohibited by any constitutional provision of the current constitution from adopting legislation permitted the licensing and regulation of casino gambling in the Commonwealth of Kentucky.

SILLIEST LAWSUIT OF THE YEAR FILED IN CAMPBELL COUNTY CIRCUIT COURT. Rep. Fischer asks court to examine racetrack gambling law which doesn’t exist.

Saturday, June 13th, 2009

 

Rep. Jon Fischer of Campbell County has filed a lawsuit asking the Campbell Circuit Court to issue a declaratory judgment that the Governor’s proposed legislation for allowing video gambling terminals in racetracks violates the Kentucky Constitution.

 

This type of lawsuit is forbidden in the law.  The law requires an actual controversy to exist before the court may render an opinion.  Judges have better things to do than sit around issuing rulings on hypothetical statutes which don’t exist.

 

If the legislation passes and is signed into law, and that is highly speculative at this time, then such a lawsuit might be ripe and a court would be granted jurisdiction if the party is found to have proper standing to raise the question.

 

Where would the judge start on her  research?  The plaintiff would not be able to present the court with the language of the offending statute since it hasn’t been written yet.  Certainly Rep. Fischer understand the legislative process (???) and understands that many bills are amended before passage.

 

We suppose the Judge could issue a hypothetical ruling concerning the hypothetical law but judges are not allowed to waste the state dollar on such frivolous pursuits.

 

We know that Rep. Fischer wasn’t in the legislature when the following statute was written, but nevertheless it does exist:

 

KRS 418.040 Plaintiff may obtain declaration of rights if actual controversy exists.

In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.

Effective: July 1, 1953

History: Transferred 1952 Ky. Acts ch. 84, sec. 1, effective July 1, 1953, from C.C.

sec. 639a-1. — Created 1922 Ky. Acts ch. 83, sec. 1.

 

Court of Appeals Sends Message to Family Courts- YOU ARE NOT SOCIAL WORKERS!!!

Friday, June 12th, 2009

 

By LawReader Senior Editor Stan Billingsley

 

At LawReader we edit every Kentucky Appellate decision and publish them every week.  Over the last six months we have noticed a very high number of cases from Family Courts being reversed.   We pursued this observation and have been persuaded by people who should know…(we protect all sources)…and have been advised that the message is being sent that Family Courts should stop acting like social worker’s and stick to the law.

 

This is an interesting observation that’s apparently has merit in view of the high number of cases being reversed and sent back to the Family Courts by the Court of Appeals.

 

One other Family Court observation which we picked up at the recent KBA convention is that some Family Court judges feel overworked, and are discussing an idea to request the Supreme Court to return juvenile cases to the District Courts to balance the case loads.

 

If you have any comments on either of these Family Court issues please e-mail me at Firstjudge@aol.com . 

Jefferson Prosecutor Accused of Not Disclosing Alleged Plea Deal Resigns

Friday, June 12th, 2009

Ruth Lerner  an Assistant Commonwealth Attorney in Jefferson County has resigned under pressure after officials say she cut a deal with a witness in a capital murder case, but didn’t disclose it.

The AP reported that Jefferson’s Attorney David Stengel says the undisclosed deal by Ruth Lerner resulted in the death penalty case being pleaded down to a sentence of 10 years with immediate parole eligibility for the defendant.

Stengel said Lerner insisted no deal was made with the witness, despite a videotape where both Lerner and the witness are heard discussing a lenient sentence on robbery charges in exchange for helping prosecutors.

The issue is being investigated by the Attorney General at the request of CA Stengel County Commonwealth

Attorney Eric Deters to Take on Police Office in Martial Arts Cage Match. He is doing this for charity, but the police officer may be doing this to get Eric!!!

Wednesday, June 10th, 2009

 

We found the following  report on the Cincinnati Whistleblower Blog.  We asked Eric if this is true and he says indeed it is true and tickets are on sale.  The event will be at the Dearborn County Fairgrounds on Aug. 29th.

Cincinnati Whistleblower  June 9, 2009:

Bluegrass Belligerence

            Bluegrass Bureau Chief Ken CamBoo says out of shape, 46 year old,  Eric “Call me Crazy” Deters will fight  Kenton County Police Officer (and part time Lawyer), Larry “The Raging Poodle” Shelton, in a Mixed Martial Arts Charity Cage Match at the Dearborn County Fairgrounds in Lawrenceburg, Indiana.  Eric stated on his radio show that all local police officers are pussies and that he could kick any one of their asses since he holds a sixth degree black belt, bench presses 550 lbs 15 times, and was trained in the Jedi arts.  The Raging Poodle accepted the challenge.

 

           Here are some things to consider for the Fight of the Century:

If you want to commit a crime in Kentucky, this is the night to do it as every cop in the Midwest will be in Indiana to see Deters get his ass pummeled.

Don’t get a DUI that night, because every attorney in the Midwest will be in Indiana to see Deters get his ass pummeled.

Check out the Female Law Enforcement Officer Bikini Contest after the fight.

Check out the Lawyer Bullshitting contest prior to the event.  Since Deters will be getting oiled up in fight prep, see if such great BS-ing attorneys such as Phil “Get Me in the Paper” Taliferro, Gary Edmonson, or Shane “Smooth” Sidebottom can steal his BS crown.

And No matter who wins, plan on Deters suing someone after the event.  “

 

 

 

Gov. Beshear unveils details of proposed VLT legislation – Measure would limit VLTs to horseracing tracks to save signature industry in crisis

Tuesday, June 9th, 2009

FRANKFORT, Ky.—Citing the crisis confronting the horse industry, Gov. Steve Beshear today released details of his proposal to authorize the limited use of Video Lottery Terminals (VLTs) at Kentucky horseracing tracks.

Kentucky’s racetracks, Gov. Beshear said, are experiencing increased competition from other states offering enhanced race purses and breeders incentives made possible from expanded gaming proceeds.

“Kentucky’s signature horseracing industry is in a state of crisis,” Gov. Beshear said. “I believe my proposal will help level the playing field for Kentucky’s horse industry and help retain the 100,000 jobs and $4 billion economic impact that Kentucky enjoys as a result of horseracing. It will also, ultimately, help generate some much-needed funds for the state during these difficult economic times.”

A significant portion of the revenue generated by VLTs would go to support equine interests, including 14.5 percent of net terminal revenue, which would be used for the enhancement of thoroughbred, standardbred and quarter horse equine interests through purse supplements and other incentives. One percent of net terminal revenue would go to the Equine Breed Authority, which would be established to promote non-racing breeds and economic development opportunities within the equine industry.

Under Gov. Beshear’s proposal, each track facility would pay an initial application fee of $25,000, plus additional license fees that would generate $360 million for the state’s General Fund. Licensing would be for 10 years, with subsequent five year renewals. 

In addition to the relief that VLTs would provide to the horse industry, Kentuckians would see some of their tax liabilities lessened beginning in January 2010 through the implementation of this proposal.

                   Beginning Jan. 1, 2010, taxpayers would save an estimated $30 million through a nonrefundable individual income tax credit equal to 50 percent of the state property tax paid on registered motor vehicles, not to exceed $500 per tax year.

                   Beginning Jan. 1, 2011, all active duty military pay would be exempt from individual income tax, an estimated savings of $18 million for eligible taxpayers. Currently the active duty military pay exemption applies only to active duty military pay for military personnel serving in a combat zone.

                   Additional sales tax relief would be provided for various purchases related to the breeding, raising, training or transporting of horses, including machinery, feed, farm chemicals and on-farm equine facilities. The exemption does not include barns or automobiles, truck and truck-trailer combinations.

Revenues generated from VLTs would cover the tax reductions associated with the income tax credit for state property taxes on cars, the active duty military pay income tax exemption, and the sales tax exemptions for the equine industry.

Under Gov. Beshear’s proposal, VLTs would be administered and regulated by the Kentucky Lottery Corporation at approved tracks licensed by the Kentucky Horse Racing Authority. The number of VLT locations would be limited to communities with approved tracks and would require local government approval for the license application. VLTs would be located and operated only on or contiguous to approved track premises. Access to VLT facilities would be limited to those 21 years of age or older.

This proposal would require the Kentucky Lottery Corporation to include in their ongoing financial reporting information on gross terminal revenue, net terminal revenue, distribution of VLT funds and lottery expenses relating to the administration and oversight of VLTs. The Lottery Corporation would be required to establish a central communication system for monitoring, auditing and regulating all VLTs under this proposal. After initial implementation costs, the Lottery Corporation will be allocated up to $2 million annually for the administration and oversight of VLTs.

###

Overview of VLT legislation (26KB PDF)
Draft of gaming bill (1.15MB PDF)
Estimated revenue from proposed legislation (13KB PDF)

 

Career Enhancement Seminar for Female Attorneys June 18th.

Tuesday, June 9th, 2009

Register Today For An Opportunity To Enhance Your Career Development

Join us for this engaging, hands-on workshop for women attorneys packed with proven techniques and ideas you can take back to your office  and use immediately. Both our speakers have over 30 years of business  experience and have served as mentors to women in the workplace.

Thursday, June 18  8 a.m. – 1 p.m.

Queen City Club, Cincinnati, OH

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 At this interactive workshop you will learn:

How successful professionals’ jump-start their career

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Seven steps to identifying your niche and target market

How to make it rain: Five keys to new business techniques

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Registration is limited. Please send check for $125 to

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Big Law Firms in the New York Model Becoming Obsolete – salaries plunge-job security vanishes

Tuesday, June 9th, 2009

The legal industry is facing a paradigm shift as fundamental as the one that has hit investment banks and the auto industry. Big Law Firms, as a business model, seems bound for obsolescence.

The Hildebrandt index found, for example, that at the nation’s 20 top-grossing law firms — 12 of which are in New York — average profit per partner and revenue per lawyer both dropped in the first quarter of 2009, for the first time since 1991.

At White & Case, the average profit per partner last year was $1.6 million, down from $1.7 million the previous year, according to AmLawDaily, the Web site of The American Lawyer.

With Wall Street in a meltdown, Big Law suddenly finds it impossible to pay young lawyers six months out of law school $160,000 a year to stare at their hands.

As law firms  bottom line increases in importance, the traditional role of the lawyer as a trusted counselor slips away.

Philip K. Howard, a senior partner at Covington & Burling, another multinational firm,  says: “To the extent that lawyers are simply churning out the same problems one after the other and are treated as factors of production to be laid off or not because of market forces or marginal declines in profitability,” … “the emotional and professional commitment that goes along with being an adviser and a solver of problems begins to diminish.”

The natural order of the large law firm world has been set on end by the economic crisis and the possible disappearance of fixtures like the pyramid system (under which associates are thrown en masse at certain cases, fattening the fees), and the billable hour itself (increasingly replaced by flat rates or retainers in a client’s market).

At White & Case, the tensions have become so fierce that some people now fear staying home even if they are sick. Market forces have replaced “the social contract,” a top partner there said: camaraderie is “not terribly strong,” because “people are very scared.”

 

Supreme Court Orders Recusal of Appellate Judge Who Received Large Contributions From Litigant – This Precedent sets new recusal standard for elected judges.

Tuesday, June 9th, 2009

June 8 2009   The right to a fair hearing before an impartial judge, untainted by money or special interests, is at the heart of the nation’s justice system and the rule of law. That right is more secure following a 5-to-4 ruling in Caperton v. A. T. Massey Coal Co, on Monday by the United States Supreme Court.

Justice Kennedy wrote:

“There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory.”

Justice Benjamin, who is now the state’s chief justice, twice cast the deciding vote to throw out a $50 million verdict against Massey Energy, one of the country’s biggest coal companies. He sat in judgment on the case even though Massey’s chief executive, Don Blankenship, spent an extraordinary $3 million to help Justice Benjamin get elected to the state’s top court.

In Monday’s decision, the majority correctly found that Justice Benjamin’s failure to recuse himself from a case involving his major campaign supporter — which John Grisham has cited as an inspiration for one of his legal thrillers — amounted to a Constitutional violation.

“Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case,” wrote Justice Anthony Kennedy in the majority opinion, which was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The “serious, objective risk of actual bias” required Justice Benjamin to recuse himself, and his failure to do so endangered the plaintiff’s due process rights under the Fourteenth Amendment, Justice Kennedy said.

In a dissent, Chief Justice John Roberts said he was concerned that the majority’s ruling will lead to an increase in allegations that judges are biased.

The case drew an unusual array of friend-of-court briefs from across the political spectrum, and such an extreme case about an ethical matter that should transcend ideology should have united all nine justices.

 

 Caperton v. A. T. Massey Coal Co.   1 (Slip Opinion) OCTOBER TERM, 2008

Syllabus

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

 

SUPREME COURT OF THE UNITED STATES

Syllabus

CAPERTON ET AL. v. A. T. MASSEY COAL CO., INC., ET AL.

CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

No. 08–22. Argued March 3, 2009—Decided June 8, 2009

After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50 million verdict. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict. Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision.

Held: In all the circumstances of this case, due process requires recusal. Pp. 6–20.

(a) The Due Process Clause incorporated the common-law rule requiring recusal when a judge has “a direct, personal, substantial, pecuniary interest” in a case, Tumey v. Ohio, 273 U. S. 510, 523, but this Court has also identified additional instances which, as an objective matter

, require recusal where “the probability of actual bias onthe part of the judge or decision maker is too high to be constitutionally tolerable,” Withrow v. Larkin, 421 U. S. 35, 47. Two such instances place the present case in proper context. Pp. 6–11.

(1) The first involved local tribunals in which a judge had a financial interest in a case’s outcome that was less than what would have been considered personal or direct at common law. In Tumey, a village mayor with authority to try those accused of violating a law prohibiting the possession of alcoholic beverages faced two potential conflicts: Because he received a salary supplement for performing judicial duties that was funded from the fines assessed, he received a supplement only upon a conviction; and sums from the fines were deposited to the village’s general treasury fund for village improvements and repairs. Disqualification was required under the principle that “[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” 273 U. S., at 532. In Ward v. Monroeville, 409 U. S. 57, a conviction in another mayor’s court was invalidated even though the fines assessed went only to the town’s general fisc, because the mayor faced a “ ‘ possible temptation’ ” created by his “executive responsibilities for village finances.” Id., at 60. Recusal was also required where an Alabama Supreme Court justice cast the deciding vote upholding a punitive damages award while he was the lead plaintiff in a nearly identical suit pending in Alabama’s lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The proper constitutional inquiry was not “whether in fact [the justice] was influenced,” id., at 825, but “whether sitting on [that] case . . . ‘ “would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true,” ’ ” ibid. While the “degree or kind of interest . . . sufficient to disqualify a judge . . . ‘[could not] be defined with precision, ’ ” id., at 822, the test did have an objective component. Pp. 7–9.

(2) The second instance emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but had determined in an earlier proceeding whether criminal charges should be brought and then proceeded to try and convict the petitioners. In re Murchison, 349 U. S. 133. Finding that “no man can be a judge in his own case,” and “no man is permitted to try cases where he has an interest in the outcome,” id., at 136, the Court noted that the circumstances of the case and the prior relationship required recusal. The judge’s prior relationship with the defendant, as well as the information acquired from the prior proceeding, was critical. In reiterating

that the rule that “a defendant in criminal contempt proceedings should be [tried] before a judge other than the one reviled by the contemnor,” Mayberry v. Pennsylvania, 400 U. S. 455, 466, rests on the relationship between the judge and the defendant, id., at 465, the Court noted that the objective inquiry is not whether the judge is actually biased, but whether the average judge in his position is likelyto be neutral or there is an unconstitutional “ ‘potential for bias,’ ” id., at 466. Pp. 9–11.

(b) Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin’s subjective findings of impartiality and propriety and need not determine whether there was actual bias.Rather, the question is whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses sucha risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U. S., at 47. There is a serious risk of actual bias when a person with a personal stake in a particular case had a significantand disproportionate influence in placing the judge on the case byraising funds or directing the judge’s election campaign when thecase was pending or imminent. The proper inquiry centers on thecontribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory. In an election decided by fewer than 50,000votes, Blankenship’s campaign contributions—compared to the totalamount contributed to the campaign, as well as the total amountspent in the election—had a significant and disproportionate influence on the outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.” Ibid. The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal. Pp. 11–16.

 

 (c) Massey and its amici err in predicting that this decision will lead to adverse consequences ranging from a flood of recusal motions to unnecessary interference with judicial elections. They point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case, which are extreme by any measure. And because the States may have codes of conduct with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard’s application rare. Pp. 16–20.

 

___ W. Va. ___, ___S. E. 2d ___, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a dissenting opinion.

Juries in Kenton and Jefferson Issue Million Dollar Verdicts against Med Mal Insurers for Unfair Settlement of Claims -This should “send a message” to adjustors

Saturday, June 6th, 2009

 

This has been a good week for Med Mal lawyers in Kentucky.  In Two separate cases, one in Jefferson County and one in Kenton County, Med Mal insurance companies were found by juries to have failed to attempt to settle claims against victims of malpractice.

 

Reporter Andrew Wolfson, in The Courier-Journal reported that in the Jefferson County case “…for nearly two years, the company – — American Physicians Assurance Corp., which insures many Kentucky doctors – — refused to engage in settlement discussions. When it finally made an offer, after nearly two years, it proposed paying Daniels only $75,000, even though the company’s internal documents showed it had valued her damages at $1 million, according to court records.”

The insurance companies own expert medical witness had told the insurance company that she was “appalled” by what the defendant surgeon did — that it was “inexcusable and indefensible.” The expert’s statement was disclosed in documents discovered by the plaintiff.

A Jefferson Circuit Court jury, after a weeklong trial and 11 hours of deliberations, awarded her $3.8 million, finding that the insurance company acted in bad faith by delaying payment of her claim when it knew its client was liable.

The verdict included $3,479,277 in punitive damages.

“One of the plaintiff’s lawyers, Hans Poppe, said it “lets insurance companies know the citizens of Kentucky are watching them” and that they will pay for “forcing injured people into unnecessary litigation with frivolous defenses.”

    This week’s Jefferson County verdict came just five weeks after a jury in Kenton County punished an insurer for acting in bad faith with a third party — a doctor’s patient.

On April 30, a Kenton County jury returned a $2.5 million verdict against Medical Protective Insurance Co. for failing to promptly settle a damage claim with a woman whose doctor severely damaged her inner ear during a simple wax-removal procedure.

She had won a $1.6 million award for her medical damages through arbitration, but the jury found that the insurer made her litigate after liability was clear. Evidence showed an adjuster collected a bonus by reducing claims, said the woman’s lawyer, Austin Mehr.

    In a published decision issued in January of 2007, HAMILTON MUTUAL INSURANCE COMPANY OF CINCINNATI  v. TERRY G. BUTTERY, 2005-CA-000233, Court of Appeals Chief Judge Sara Combs, joined by Judges Huddleston and Knopf upheld a jury verdict against an insurer for violation of KRS 304.12. 

 

Judge Combs wrote: “ In the 2006 case of Knotts v. Zurich Ins. Co., supra, 197 S.W.3d 512, the Court held that evidence of an insurer’s settlement behavior throughout the litigation may be examined and presented in order to establish an insurer’s bad faith.”

 

“As Buttery has correctly observed, an insurer’s duty to deal fairly with its insured does not end if or when an insured seeks recourse to litigation.”

 

Other comments from this decision: 

 

“Hamilton Mutual failed to make a timely, good faith attempt to satisfy Buttery’s claim and that the delay was without reasonable foundation”

 

“An insurance company still is obligated under the [Act] to investigate, negotiate, and attempt to settle the claim in a fair and reasonable manner.”

 

“Kentucky courts have never held that advice of counsel provided an absolute defense against allegations of an insurer’s bad faith.”

 

 

Other decisions in Kentucky have held that although an insurance company insures the defendant, their duty of good faith and fair dealing extends to the plaintiff.

Jefferson Com. Attn. Dave Stengel Does the Right Thing and asks Attn. General to Intervene Re: Claims of Perjury regarding Plea Deal offered Jail House Snitch

Saturday, June 6th, 2009

 

The Courier- Journal reported today that Jefferson Commonwealth’s Attorney Dave Stengel has asked the state attorney general’s office to investigate whether a jailhouse snitch in a murder case lied during his testimony last week about making a deal with prosecutors.  Under Kentucky law the Attorney General cannot intervene unless local officials request his intervention.

 

While Stengal’s request for the Attorney General to intervene is a proper first step, it is not clear as to whether the A.G.’s investigation will also review the conduct of the Deputy Prosecutors Ruth Lerner and Jason Butler, who are alleged by Public Defender Jay Lambert to have withheld exculpatory evidence from the defendant and Judge Charlie Cunningham, or will the A.G.’s investigation just investigate the possible perjury of the jailhouse snitch.

Deputy Commonwealth Attn. Harry Rothgerber wrote in a letter sent yesterday to the Attorney General that “the conflict arises because of contradictory positions by” Lerner and Butler “which may affect the determination of Mr. Bryant’s actual knowledge and intent.”

In a press conference this week, Public Defender Jay Lambert alleged misconduct by the prosecutors in withholding the exculpatory evidence regarding the alledged plea deal.

Lambert (in Gibson’s murder trial) showed jurors a video from a June 23, 2008, court hearing in the informant’s case, in which Assistant Commonwealth’s Attorney Ruth Lerner said, in front of Circuit Judge Mitch Perry, that Bryant was working with the prosecution in Gibson’s case in exchange for reduced charges.  No disclosure was made to Lambert or Judge Cunningham concerning the alleged plea deal.  

Deputy Prosecutor Ruth Lerner says she “misspoke” to Judge Perry and there was no plea deal, although the informant was granted probation. Both Ruth Lerner and Assistant Commonwealth’s Attorney Jason Butler, who prosecuted Gibson, told Judge Cunningham  in the murder case that there was no such deal.

Detroit Judge Prosecuted for Knowingly Allowing Perjured Testimony to Protect Informant – case has uncanny resemblance to Louisville case.

Friday, June 5th, 2009

This news story from Detroit shows the trouble a Judge can get himself into for (allegedly) bending the rules to help prosecutors obtain convictions.  A Similar claim has been made in a murder trial in Louisville.

 

COMPILED BY JOE SWICKARD AND BEN SCHMITT • May 12, 2009  Freep.com

 

Felony charges against former Wayne County Circuit Judge Mary Waterstone should be dismissed because it is unfair to criminalize rulings, even erroneous ones, made during a trial, her attorneys argued in a written pleading filed Monday.

Waterstone’s attorneys also want to disqualify Michigan Attorney General Mike Cox from handling the case that grew out of a troubled Inkster cocaine bust and trial that was marked by false testimony. Cox has a conflict of interest because his office defended Waterstone in a federal civil lawsuit connected to the 2005 cocaine case, according to the pleading.

In the pending criminal case, Cox wrongly charged Waterstone for “erroneous ruling made by a trial judge in the midst of a highly charged criminal case,” the judge’s lawyers, Juan Mateo and Gerald Evelyn, wrote in their pleadings.

Waterstone is charged with four counts of official misconduct for allowing false testimony in the trial of Alexander Aceval and Ricardo Pena, who were charged with possession of 47 kilos of cocaine. The trial prosecutor Karen Plants and Inkster police officers Robert McArthur and Sgt. Scott Rechtzigel are charged with conspiracy to commit perjury for covering up the identity of the police informant in the case.

Waterstone was told privately of the false statements and allowed them to go uncorrected. According to a record of those secret meetings, the judge said she was protecting the informant from possible retaliation.

Cox’s spokesman John Sellek said: “When a judge knowingly allows perjury to occur it is criminal misconduct.”

Attorney Alert: Beware of the Asia Collection Scam which is trying to lure in Kentucky Lawyers

Thursday, June 4th, 2009

There is a prolific scam going on now that involves law firms collecting money owed to Asian companies. The scammers are targeting Law Firms, and using verifiable company names.  This is a very professional scam, and you are the target.

If they approach you they will say they represent a manufacturing company somewhere in Asia.  When you check the company out, you will be able to verify that they exist and are a legitimate  company.  The story is that they want you to represent them to collect a debt owed by a company in your county or state.   They will ask you to submit a fee contract, and they will sign this and return it.

They will then notify you that they have informed the debtor that they have employed you and shortly you will be notified that the debtor is paying the debt.  You will then received a certified cashiers check delivered by FedEx or DHL.   You are supposed to deposit this check in your trust account, and when the check clears you deduct your fee and costs, and wire them the balance of the collected firms.

The check may be drawn on CITI bank or other legitimate bank that you recognize. They are then asked to take a percentage and wire the rest to a bank in Korea, China or somewhere else usually in Asia.  The bank which this check is drawn on has nothing to do with the scam.  The check is counterfeit.

A banker advised us that instead of depositing a suspicious check in your trust account, you can request that your bank send this check directly to the “issuing” bank and request collection.  This avoids the embarassment of a bounched check in your account and should put everyone on notice that you are concerned about this check.

One of these scams we saw was very well done until the instructions for wiring the funds was given to the attorney.  A tipoff was that the address in the wiring instructions has nothing to do with the legitimate front company they claimed to represent.

If the bank didn’t do their due diligence and notice that the check was a forgery, and if they deposited the funds in your trust account, then you would have ever reason to believe that this was on the up and up.  However, at least one attorney in Texas actually had a check honoured by the bank, and wired the funds to the scam address.  Later the bank came back and emptied his account when the forged check was discovered.

Even if the bank has some liability they will still come against you.  Believe us you don’t want to purchase a major lawsuit trying to defend a forged check.  And you will have a difficult time trying to justify money that is stolen from the innocent bank.

If you think a collection matter or similar scam is occurring, you should find an independent sources for the “client” address and contact them and confirm that the person who contacted you actually represents the legitimate company.   Also you can call the local “debtor” and ask them if they have done business with the alleged creditor company.

What really sucks you in is that both the “creditor” company and the “debtor” companies are real companies and have nothing to do with the scam.    

The best tip off is the strange wiring instructions which will be to someone unrelated to the “creditor” who “hired” you.

There are several reports by attorneys that the FBI when contacted about these scams shows little interest.   So you are pretty much on your own.

One report is that the scammers are located in Canada.  Check on the delivery which brings the check to you…if the envelope has a Canadian origination, you can pretty well be sure that this is a scam.

One Texas law firm  lost $158,000 on one of these fake collection scams.

To learn more about how other attorneys around the country have been scammed on this go to:  http://www.scamwarners.com/forum/viewtopic.php?t=1578

Attorney General Conway and Members of the Prosecutors Advisory Council Praise Governor Beshear’s Proposed Budget Increase for Prosecutors

Wednesday, June 3rd, 2009

June 3, 2009

Attorney General Jack Conway and members of the Prosecutors Advisory Council today praised Governor Steve Beshear’s proposed Special Session budget that seeks to increase funding for Kentucky prosecutors.

The Governor’s proposal calls for an increase to the Unified Prosecutorial System in fiscal year 2010 in order to ease the devastating budget shortfall that the Commonwealth’s prosecutors experienced during the last biennium. The Unified Prosecutorial System consists of County Attorneys, Commonwealth’s Attorneys and their employees throughout the Commonwealth’s 120 counties.

The Unified Prosecutorial System began fiscal year 2009 with a budget that was $2 million less than what was needed to maintain current staff levels. Kentucky’s prosecutors were dealt another financial blow with an additional mid-year cut in excess of $2.6 million, leaving the prosecutorial system virtually crippled. As a result, many employees of the Unified Prosecutorial System were subjected to three weeks of unpaid furloughs, more than any other group of state employees. Prosecutors were also forced to implement layoffs and to transmit local funds to the State Treasury in order to deal with the budget shortfall.

“As Chairman of the Prosecutors Advisory Council, I am very pleased that Governor Beshear has recognized the critical needs of the state’s prosecutors,” said General Conway. “The additional funding included in his budget proposal is crucial for public safety and for ensuring that crime victims are properly served by our criminal justice system. I am hopeful that those who work day- in and day-out to protect Kentucky families will receive the necessary funds to avoid additional furloughs and job losses.”

Members of the Prosecutors Advisory Council have also praised the Governor’s proposed budget.

“We truly appreciate Governor Beshear’s commitment to help the state’s prosecutors in this most serious of economic times. We voiced our concerns to him, and he has proposed much needed funding to address this situation,” said Christian County Attorney Mike Foster, a member of the Prosecutors Advisory Council and President of the Kentucky Association of Counties.

“Governor Beshear is dealing with a devastating financial crisis, and we are truly grateful that he recognized the dire needs of the state’s prosecutors,” said Chris Cohron, Warren County Commonwealth’s Attorney and President of the Commonwealth’s Attorneys Association. “We are hopeful that this proposal for additional funding will be adopted by the General Assembly during the special session.”

 

 

Commonwealth Attn. conducting Internal Review of Public Defender’s Allegations

Wednesday, June 3rd, 2009

T   The Jefferson County Commonwealth’s Attorney’s office is conducting an internal   

        review of allegations that two of its prosecutors withheld crucial inf  o    information from  defense attorneys and then lied in court about a   de  deal with a jailhouse informant  in a capital murder case.

 

“I’m always concerned when prosecutors are called into disrepute in the public arena,” Harry Rothgerber, first assistant in the commonwealth’s attorney’s office, said of accusations that two public defenders made at a news conference Monday. “I believe the public should be ensured in the integrity of their prosecutorial officeholders.”

Rothgerber declined to say if he believed his prosecutors had made a deal, saying that would be part of the review in response to a 33-page motion that Lambert and Clark filed, asking a judge to dismiss charges against Gibson.

While Monday’s plea makes that motion moot, Rothgerber said the office will still respond, hopefully within a week

Our prosecutorial accountability system will be tested by claims made by a Public Defender in Louisville this week. Will a prosecutor investigate and consider filing charges against another prosecutor in his office?

Tuesday, June 2nd, 2009

 

Jefferson County Public Advocate Jay Lambert held a press conference on Monday June 1, 2009, and claimed that Judge Perry and Prosecutor Jason Butler misrepresented to the Trial Judge, Charlie Cunningham, that there was no deal or consideration extended to a jailhouse informant.  Judge Perry sentenced the jailhouse informant after his guilty plea, and Judge Cunningham tried the subsequent case  involving Cory Gibson who was tried on a murder charge.

 

The public defender claims that a videotape made at the time of the recorded plea and sentencing of the jailhouse informant confirms that such a deal was made.  The informant testified against Lambert’s client in a murder trial.

 

“I have never seen conduct as egregious … as I’ve seen in this case,” public defender Jay Lambert said.

 

Lambert alleges that prosecutors and Judge Perry conducted a “sham” sentencing last year for inmate Michael Bryant and then lied about whether Bryant had received a lenient punishment in exchange for testifying in Cory Gibson’s murder trial last week.

Lambert said Judge Perry “obscured the record” of Bryant’s sentencing and misled Gibson’s attorneys.

“In 25 years of practicing law, I have never seen conduct as egregious by the prosecution or by the judge as I’ve seen in this case,” Lambert said at the public defender’s office.

The informant was later probated.

 

The Courier-Journal reported: “… prosecutors never told Gibson’s attorneys about the deal, as required by law, and both Lerner and Butler told Cunningham in May that there was no such deal.”

 

The issue that we find as important is that the Commonwealth Attorney’s Office through spokesman Steve Tedder, said “no investigation is underway.”  That does not mean that there won’t be, and we will reserve our judgment to let this play out, but there are ethical rules and criminal statutes that prohibit the withholding of exculpatory evidence.

 

SCR 3.130(3.8) Special responsibilities of a prosecutor

“The prosecutor at all stages of a proceeding shall:

(c) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”

 

Will the KBA investigate a possible violation of SCR 3.130(3.8)?

 

The U.S. Supreme Court’s 1963 decision in Brady v. Maryland 373 US 83 (1963) and subsequent rulings that further refined that holding, were intended to level the playing field in criminal cases by requiring the government to fully disclose to the accused all exculpatory and impeachment evidence in its possession.

 

In Brady v. Maryland 373 US 83 (1963), aff’g 174 A2d 167 (Md. 1961)  the Supreme Court imposed on prosecutors a constitutional obligation under the Due Process Clause of the Fourteenth Amendment to disclose to an accused all evidence that is “material” to either guilt or punishment “irrespective of the good faith or bad faith of the prosecution.”

 

In  Giglio v. United States, 405 US 150 (1972) and United States v. Bagley, 473 US 667 (1985), the U.S. Supreme Court reached beyond exculpatory evidence and included among the materials that must be disclosed under Brady evidence that could impeach a witness. The Giglio court concluded that any prosecutor’s promise of leniency to a testifying witness during the course of an investigation or trial had to be disclosed because the witness’s motivations and credibility could impact the outcome of the case.

 

There are criminal penalties for certain acts of public officials and the  prosecutors are public officials.  KRS 522.020 and KRS 522.030  are misdemeanor offenses which apply to all public officials, and with the right fact situation they appear to criminalize acts such as withholding exculpatory evidence and violations of the Rules of Professional Conduct.   

 

KRS 519.060 is a Felony and may apply to withholding exculpatory evidence.

Do you know what this Chinese says? 当证言也许被采取 See how to translate this…

Tuesday, June 2nd, 2009

 

We do, it means:  “When depositions may be taken.”  The reason we know is that Microsoft Word has a built in translator. 

 

This came up as LawReader has been communicating with several Chinese companies (it’s never dull around here) and we needed to translate some terms.

 

Here’s how you can quickly translate Chinese or almost any other language with Microsoft Word.

 

 This is how to translate in Word:

 

  1. Highlight selected text
  2. Click on TOOLS dropdown
  3. select LANGUAGE
  4. select: TRANSLATE
  5. In window to the right a WINDOW will open
  6. Choose from the selection or go to TRANSLATION OPTIONS for more specific selections.
  7. Translation will be done and may be copied into WORD.

 

Gwen Billingsley

LawReader CEO

 

U.S. Supreme Ct. to review Patents for Business-Method Processes

Monday, June 1st, 2009

The U.S. Supreme Court agreed to consider what types of business methods qualify for patent protection in a case with ramifications for the software, biotechnology and financial services industries.

The justices today said they will review a lower court decision that narrowed the class of patentable inventions, excluding some innovations that don’t have a physical component. Because it came from the federal appeals court that handles all patent appeals, the ruling had marked a watershed in U.S. intellectual property law.

The case will mark the first time since 1981 the Supreme Court has ruled on the types of innovations covered by the U.S. Patent Act. The justices will hear arguments and rule during the nine-month term that starts in October.

In the dispute before the court, inventors Bernard L. Bilski and Rand A. Warsaw are seeking a patent on a way to buy or sell energy at a fixed price based on the expected weather for a season.

The U.S. Court of Appeals for the Federal Circuit in October ruled against Bilski and Warsaw. The court said in a 9-3 decision that business-method patents must either be connected to a machine or “transform” an item from one state to another.

The appeals court overturned its own 1998 decision that said business methods are entitled to patent protection if they had a “useful, concrete and tangible result.” The 1998 ruling, which involved a computerized accounting method for managing a mutual fund, opened the door to a flood of such patents.

The patent office grants patents to processes, machines, manufactured items and compositions of matter including drug compounds. Courts have wrangled for decades over how to define processes.

Bilski and Warsaw contended in their appeal that the Federal Circuit “has essentially confined all process patents to manufacturing methods, using a test that may have been appropriate during the Industrial Age but no longer fits our modern information-based economy.”

The high court under Chief Justice John Roberts has limited patent rights in a series of cases. In 2006, three justices suggested support for tighter limits on business-method patents.

The case is Bilski v. Warsaw, 08-964.