The RCBA Journal Legal News Blog

New York Divorce Law Moves Closer To Overhaul

Mon, 20 May 2013 22:19:33 -0400

New York Divorce Law Moves Closer To Overhaul:

An independent commission reviewing New York’s alimony laws recommended sweeping changes in a report issued Friday, including revamping formulas and throwing out a unique decades-old legal precedent that counts professional degrees as marital assets.

CITY OF ARLINGTON, TEXAS, et al. v. FEDERAL COMMUNICATIONS COMMISSION et al.

Mon, 20 May 2013 21:54:31 -0400

CITY OF ARLINGTON, TEXAS, et al. v. FEDERAL COMMUNICATIONS COMMISSION et al. :

Courts must apply the Chevron framework to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (i.e. jurisdiction), and here: 1) the Federal Communications Commission (FCC) Declaratory Ruling that the phrase “reasonable period of time” under section 332(c)(7)(B) of The Communications Act of 1934 is presumptively, but rebuttably, 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications; and 2) the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority.

PPL CORP. et al. v. COMMISSIONER OF INTERNAL REVENUE

Mon, 20 May 2013 21:52:31 -0400

PPL CORP. et al. v. COMMISSIONER OF INTERNAL REVENUE :

The U.K. one-time “windfall tax” imposed on privatized companies in 1997 and paid by petitioner, is creditable under Internal Revenue Code section 901(b)(1), which states that any “income, war profits, and excess profits taxes” paid overseas are creditable against U.S. income taxes, where here, the U.K. windfall tax’s predominant character is that of an excess profits tax, a category of income tax in the U.S. sense.

METRISH, WARDEN v. LANCASTER

Mon, 20 May 2013 21:50:48 -0400

METRISH, WARDEN v. LANCASTER :

Defendant is not entitled to federal habeas relief, where: 1) after defendant’s first trial but prior to his retrial, the Michigan Supreme Court 2001 decision in Carpenter, held that the diminished-capacity defense was not encompassed within the Michigan Legislature’s comprehensive scheme for mental-illness defenses and thus could not be invoked by criminal defendants; 2) in light of U.S. Supreme Court precedent and the history of Michigan’s diminished-capacity defense, the Michigan Court of Appeals’ decision applying Carpenter retroactively at defendant’s retrial is not an unreasonable application of clearly established federal law; and thus, 3) defendant’s due process rights were not violated.

SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES v. CLOER

Mon, 20 May 2013 21:48:37 -0400

SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES v. CLOER :

An untimely petition under the National Childhood Vaccine Injury Act may qualify for an award of attorney’s fees if it is filed in good faith and there is a reasonable basis for its claim.

Report Says Nearly 1 in 3 Youths Arrested by Age 23lawyers.com A...

Sun, 19 May 2013 14:07:26 -0400

Report Says Nearly 1 in 3 Youths Arrested by Age 23
lawyers.com

A recently released study claims that nearly 1 in 3 U.S. youths will be arrested for a non-traffic offense by age 23. Zero-tolerance policies and a broadened definition of alcohol offenses …

Court Overturns $6.5M Verdict In First Actos Trial Silvia Hsieh,...

Sun, 19 May 2013 14:04:19 -0400

Court Overturns $6.5M Verdict In First Actos Trial
Silvia Hsieh, lawyers.com

TongRo Images/ThinkstockSoon after a jury awarded $6.5 million to a California man who claimed the diabetes drug Actos caused him to develop bladder cancer, a court erased the verdict.Jack Cooper , 79, on April 26 won the award against Actos maker…

Jury Buys Plaintiff’s Argument That Drug Manufacturer Should Have Distributed Dear Doctor Letter Sooner, Without Prior FDA Approval | Morrison & Foerster LLP

Thu, 16 May 2013 19:51:51 -0400

Jury Buys Plaintiff’s Argument That Drug Manufacturer Should Have Distributed Dear Doctor Letter Sooner, Without Prior FDA Approval | Morrison & Foerster LLP:

jdsupra.com

Dear Doctor letters were front and center in the just-tried case of Tietz v. Abbott Laboratories, Inc., et al., No. 12-L-002715. On Thursday, May 9, 2013, a Chicago jury returned a $2.2 mill …

Judiciary Asks White House for Emergency Funds

Wed, 15 May 2013 20:05:09 -0400

Judiciary Asks White House for Emergency Funds:

Joe Palazzolo, wsj.com

The federal judiciary has requested emergency funds from the White House that court officials say are needed to avoid debilitating staff cuts and to cover the legal defense of the Boston Marathon bombings suspect, among others.

Judge: Sandy Refugees Can Stay in NYC Hotels

Wed, 15 May 2013 19:55:43 -0400

Judge: Sandy Refugees Can Stay in NYC Hotels:

nbcnewyork.com

New Yorkers displaced by Sandy will continue to be able to stay in city-paid hotel rooms.
A Manhattan judge ruled Wednesday that the city must continue to shelter hundreds of Sandy-displaced …

A Reminder at Roll Call: See a Topless Woman While on Patrol?...

Wed, 15 May 2013 19:40:38 -0400

A Reminder at Roll Call: See a Topless Woman While on Patrol? Just Move Along
By J. DAVID GOODMAN, nytimes.com

In the cold of February, as New York City police officers gathered for their daily orders at roll call, they were given a rather unusual command, for both its timing and its substance: If they happened upon a topless woman, they were not…

Supreme Court sides with Monsanto in major patent case

Mon, 13 May 2013 19:35:17 -0400

Supreme Court sides with Monsanto in major patent case:

usatoday.com

Supreme Court upheld agribusiness giant Monsanto’s patent on Roundup-resistant soybeans

DAN'S CITY USED CARS, INC., dba DAN'S CITY AUTO BODY v. PELKEY

Mon, 13 May 2013 17:48:32 -0400

DAN'S CITY USED CARS, INC., dba DAN'S CITY AUTO BODY v. PELKEY :

State-law claims stemming from the storage and disposal of a car, once towing has ended, are not sufficiently connected to a motor carrier’s service with respect to the transportation of property to warrant pre- emption under Section 14501(c)(1) of the Federal Aviation Administration Authorization Act, where: 1) plaintiff’s state law Consumer Protection Act and negligence claims are not related to the movement of his car; 2) plaintiff seeks redress only for conduct occurring after the car ceased moving and was stored; and 3) plaintiff’s claims are also unrelated to a “service” a motor carrier renders its customers.

BULLOCK v. BANKCHAMPAIGN, N. A.

Mon, 13 May 2013 17:47:18 -0400

BULLOCK v. BANKCHAMPAIGN, N. A. :

The term “defalcation” in the 11 U.S.C. section 532(a)(4) of the Bankruptcy Code includes a culpable state of mind requirement involving knowledge of, or gross recklessness in respect to, the improper nature of the fiduciary behavior, and thus the lower courts’ holdings that petitioner-debtor’s debts were not dischargeable pursuant to section 523(a)(4) because the debts fell within section 523(a)(4)’s exception “as a debt for defalcation while acting in a fiduciary capacity,” under an “objective recklessness” standard, is vacated and remanded.

BOWMAN v. MONSANTO CO. et al.

Mon, 13 May 2013 17:46:04 -0400

BOWMAN v. MONSANTO CO. et al. :

The doctrine of patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.

Staten Island man sentenced to 25 years for sexual assault of 5-year-old relative

Fri, 10 May 2013 19:25:26 -0400

Staten Island man sentenced to 25 years for sexual assault of 5-year-old relative:

Print, silive.com

STATEN ISLAND, N.Y. — Saying the victim was forced to endure unspeakable brutality, a justice threw the book Friday at a Port Richmond man convicted of sodomizing his 5-year-old relat …

Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Company of Pittsburgh, PA, 69, May 07, 2013 - NY Court of Appeals | FindLaw

Tue, 07 May 2013 20:43:26 -0400

Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Company of Pittsburgh, PA, 69, May 07, 2013 - NY Court of Appeals | FindLaw:

In insurance coverage dispute involving the apportionment of liability for a settlement between the plaintiff-Diocese and a minor plaintiff in an underlying civil action charging sexual molestation by a priest, the Appellate Division correctly concluded that: 1) the incidents of sexual abuse constituted multiple occurrences; and 2) any potential liability should be apportioned among the several insurance policies, pro rata.

People v. Milton, 75, May 07, 2013 - NY Court of Appeals | FindLaw

Tue, 07 May 2013 20:42:43 -0400

People v. Milton, 75, May 07, 2013 - NY Court of Appeals | FindLaw:

The superior court information (SCI) in this case was not jurisdictionally defective where it named victims not identified in the felony complaint, because the offense to which defendant pleaded guilty was the same offense for which he was charged in the felony complaint, and adding the names of the victims in the SCI did not render the offense a different one.

People v. Prescott, 80, May 07, 2013 - NY Court of Appeals | FindLaw

Tue, 07 May 2013 20:42:04 -0400

People v. Prescott, 80, May 07, 2013 - NY Court of Appeals | FindLaw:

Defendant’s application for a writ of error coram nobis granted is granted, where: 1) defendant’s appellate counsel also represented his co-defendant Martin at Martin’s sentencing hearing; 2) appellate counsel argued at Martin’s sentencing hearing for leniency based on Martin’s trial testimony adverse to the defendant; 3) defendant neither knew nor had the opportunity to waive any conflict arising from appellate counsel’s representation of defendant and Martin; and thus, 4) under these circumstances, an actual unwaived conflict existed.

Prine v. Santee, 140 SSM 9, May 07, 2013 - NY Court of Appeals | FindLaw

Tue, 07 May 2013 20:41:01 -0400

Prine v. Santee, 140 SSM 9, May 07, 2013 - NY Court of Appeals | FindLaw:

Summary judgment for defendant Anna Torres dismissing the complaint and all cross claims against her is affirmed, where the non-moving parties failed to raise a triable issue of fact as to whether defendant Torres’s actions as the lead driver in this four-vehicle-chain-reaction accident constituted a contributing cause of the collision.