Legislative and Regulatory Update
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In This Issue [No.100] October 10, 2004
International RBI DGFT Telecom Regulatory Authority of India(TRAI) Revenue Ministry of Labour Press Information Bureau Supreme Court High Courts
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Cases
Source: Westlawinternational.com
Health: Verdict for $20,000,000 in pain and suffering damages in medical malpractice case warranted remittitur
The jury in a medical malpractice action did not succumb to bias or prejudice in awarding damages for pain and suffering in the amount of $15,000,000 to a patient who contracted a mycobacterial infection during plastic surgery, and in the amount of $5,000,000 to the patient's husband. The awards, however, seemed improbable in light of the damages awarded in comparable cases, and were so great as to shock the conscience of the court. Thus, a remittitur of the awards to $10,000,000 for the patient and $1,000,000 for the husband was warranted. If the patient and her husband refused the remitted awards, a new trial on damages would be ordered.
Hayes v. Cha
Estate Planning and Probate: Will signed by one of two witnesses after testator's death admissible to probate
A will that was signed by one of two witnesses after the testator's death was admissible to probate. The second witness was available to testify, his credibility could be tested at the trial of a will contest, should one be filed, and the circumstances presented no greater opportunity for fraud than would a situation where a purported witness whose signature appeared on a will is no longer available.
In re Estate of Sauressig
Torts: A county's claims against tobacco manufacturers were too remote
A county failed to show it had suffered a direct injury of increased costs of providing health care to tobacco consumers as the result of a conspiracy among tobacco manufacturers to suppress information about the adverse effects of smoking, to conceal manipulation of nicotine content, and to avoid competition. The alleged injury was too remote from the alleged misconduct for the county to maintain its suit.
County of Cook v. Phillip Morris, Inc.
Immigration: Age-out regulations terminating benefits under nonimmigrant "V" visas were invalid
It was contrary to congressional intent and frustrated congressional policy to separate families following their reunification pursuant to the Legal Immigration Family Equity Act, which allows children of lawful permanent residents to hold nonimmigrant "V" visas authorizing them to enter the United States to be with family while awaiting a permanent visa number. Therefore, age-out provisions in the implementing regulations, under which children holding "V" visas lost the benefits thereof upon turning 21, were not entitled to judicial deference, and were invalid. There was no indication in the legislative history that children issued "V" visas would have those visas terminated, and be returned to their home country, based on their age. Rather, Congress intended to alleviate the hardships of a long administrative backlog that was keeping "thousands of families" from being together in the United States.
Akhtar v. Burzynski
Energy and Utilities: Dam owner was not liable to property owners whose land was damaged by hurricane floodwaters
A dam owner was not negligent in the design, maintenance and operation of its dams and reservoirs, and thus those who suffered damage when those dams overflowed during a hurricane were not entitled to recover from the dam owner. The dam owner's duty to downstream homeowners was only to design, maintain and operate its dams in a fashion that ensured the facilities' structural integrity during predictable events such as hurricanes. This duty was not breached, given that the dams did not structurally fail. Rather, the dams held back floodwaters to the maximum of their capacities and it was only the natural flow of excess water running through the natural watercourse that caused property damage.
Shamnoski v. PG Energy
Criminal Justice: Conducting jury trial on prison grounds violated impartial jury guarantee of state constitution
Conducting a defendant's jury trial within the confines of the prison, in a prosecution for felony offenses arising from his attack on a correctional officer while he was incarcerated, violated his state constitutional right to a trial by an impartial jury. Holding the trial in prison was such a departure from the ordinary course, and the risk of singling the defendant out as dangerous, and by extension guilty, was sufficiently great, to render the practice inherently prejudicial.
State v. Cavan
Criminal Justice: Trial judge was required to afford defendant opportunity to be heard before sentencing him for contempt
A trial judge was required to afford a defendant the opportunity to be heard before the judge sentenced the defendant to community service and imposed a fine for criminal contempt of court. The judge's criminal contempt occurred after defendant refused to turn over his cell phone to the bailiff without a receipt after the judge asked him to do so, and defendant instead left the courtroom. The trial transcript showed that the trial court sentenced the defendant without ever giving him an opportunity to speak or explain why he should not be held in contempt.
Coleman v. State
Military Law: DC Court had jurisdiction over Guantanamo detainee's habeas petition
The United States District Court for the District of Columbia had jurisdiction to hear a foreign national's habeas corpus challenge to legality of his detention at the Guantanamo Bay Naval Base. The only properly named respondent was the Secretary of Defense, who worked at the Pentagon in the Eastern District of Virginia. However, the Supreme Court, in Rasul v. Bush, held that the habeas petition could be filed in the District of Columbia.
Gherebi v. Bush
International Law: International treaties may narrow courts' jurisdiction over foreign sovereigns
In a case of apparent first impression in the circuit, the Ninth Circuit has construed the general immunity provision of the Foreign Sovereign Immunities Act (FSIA), which provides that, subject to existing international agreements, foreign states shall be immune from jurisdiction of United States courts except as specifically provided in other provisions of the FSIA. Under this provision, existing international agreements may either expand or contract a foreign state's amenability to suit in United States courts. The clause "subject to existing international agreements" permits an international treaty, by barring suit against a foreign state when such a suit would have been allowed under an FSIA exception, to narrow courts' jurisdiction over foreign sovereigns.
Moore v. United Kingdom
Labor and Employment: Employer's failure to allow employee to attend religious convention was discriminatory
An employee sufficiently established a prima facie case of religious discrimination under the Fair Employment and Housing Act (FEHA), triggering the employer's duty to accommodate the employee's religious observance. The evidence demonstrated that the employee sincerely held a religious belief as a Jehovah's Witness, that adherents to his religion were expected to attend a yearly religious convention, that the employee's supervisor, and thus the employer, was aware of the employee's desire to attend the convention in accord with his religious belief, and that attendance at the convention conflicted with an employment attendance requirement. The employee further demonstrated that the employer failed to initiate good faith efforts to accommodate the employee's religious observance.
California Fair Employment and Housing Com'n v. Gemini Aluminum Corp
Family Law: Father could not be ordered to pay child support without designation of mother as primary residential parent.
A father could not be ordered to pay the mother $800 per month in child support when the mother was not designated as the primary residential parent, even in a case such as this one where the parents shared equal parenting time with the child. The Supreme Court rejected the father's contention that the incomes of both parents be taken into consideration in such a case, as the child support guidelines did not allow for such comparative analysis. Neither did the guidelines permit that no support be ordered in a situation where the parents have split custody. Therefore, remand was required for the trial court to designate the primary residential parent, and recalculate the nonresidential parent's child support obligation accordingly.
Hopkins v. Hopkins
Legal Services: Attorney's misconduct based on neglect of client matters, dishonesty, fraud, and deceit warranted disbarment
An attorney's knowing conversion of client funds, failing to keep client funds separate from his own, failing to return client funds he did not earn, neglecting and abandoning client matters entrusted to him, making false statements in court proceedings, requesting a notary to notarize an unsigned document dated the previous year, and failing to pay an employee for her services warranted disbarment. There was no evidence of mitigation, and aggravating factors included a prior disciplinary record, acting with a dishonest or selfish motive, engaging in a pattern of misconduct, committing multiple offenses, failing to cooperate with disciplinary proceedings, and demonstrating indifference to making restitution to those whose funds he misappropriated or converted.
People v. Woodford
News
Christian nuns can no longer wear habits in schools
A law had been passed in April, preventing teachers from wearing Islamic-style headscarves. In this regard, Germany’s Highest Administrative Court has ruled that such a law should apply to all religions. While deciding the case, the judge held that “exceptions for certain forms of religiously motivated clothing in certain regions are out of the question”. This basically means that Christian nuns would have to remove their habits before attending classrooms.
Vioxx not a reliable drug for consumers
In a recent development, the attorneys of one of the residents of Madison County, have filed a class action lawsuit in the Jackson County Circuit Court, against Merck & Company, alleging that the company defrauded consumers by promoting Vioxx as a safe painkiller. The plaintiff contented that Merck has unfairly profited by overstating the superiority of Vioxx, while downplaying its dangers. Reacting to this, Merck has announced the withdrawal of Vioxx from all markets worldwide after a study, which confirmed that it increases the risk of serious cardiovascular events, including heart attack and heart stroke.
IBM to pay $300 million in relation to its new cash-balance pension plan
In a recent move, IBM has agreed to pay $300 million to resolve certain claims in the class action lawsuit relating to its new cash-balance pension plan. As part of the settlement, current and former employees would be eligible to receive an incremental pension benefit worth approximately $300 million in exchange for the settlement of certain claims and a stipulated remedy in the event that IBM loses the remaining cash balance claims on appeal. But the said agreement limits IBM's potential liability for the claims being appealed to additional $1.1 billion.
New Bill with respect to DNA Testing
Recently, both the houses of Congress passed a bill (HR 5107 – The Justice for All Act of 2004) that expands the access of rape victims and convicted felons to DNA testing. This bill increases funding for processing the current backlog of DNA samples from rape kits and death row cases, and provides testing monies for current inmates whose cases might benefit from the introduction of DNA evidence. In addition, it also places a burden on the prosecution to prove that DNA testing is not necessary for the first five years after conviction, and then switches the burden to the defense to show that there is justification for proceeding with new DNA testing.
Innumerable cases being institute against Merck & Company
A Chicago law firm, Kenneth B. Moll & Associates, has filed the first worldwide Vioxx class action lawsuit in U.S. District Court against Merck & Co., on behalf of all the suffering patients who were prescribed the arthritis drug. The lawsuit seeks to recover damages for patients who were injured or died as a result of there use of Vioxx and inform consumers and physicians worldwide of the potentially deadly side effects of Vioxx. According to estimates, over 24 million patients have been prescribed the drug worldwide. In addition, the lawsuit requests that a medical monitoring fund be established to enable people who have taken Vioxx to monitor the existence of dangerous side effects.
Check on institution of frivolous lawsuits
According to recent statements made by Corporate Americans and their political allies, institution of frivolous lawsuits place huge burdens on the economy. Supporting this, a report released by Public Citizen further stated that American businesses file four times as many lawsuits as do individuals represented by trial attorneys. As a trend, insurance companies filed about 8,000 lawsuits in 2002 - 35 times the number of class actions filed there by individuals that year. They further stressed on the need that there’s nothing wrong with anyone, whether an individual or a business, taking a genuine dispute to court when it can’t be resolved amicably. In addition, the report, "Frequent Filers: Corporate Hypocrisy in Accessing the Courts", found that businesses and their attorneys were 69 percent more likely than individuals and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses.
Unauthorized recordings of live concerts under scrutiny
In a recent decision, a law passed in 1994 prohibiting the unauthorized recordings of live concerts on grounds that it sets no limits on the length of copyright, has been overturned. While dealing with the issue in hand, the Judge further ruled that that the anti-bootlegging statute was unconstitutional because it provided unlimited protection for live musical performances, which conflicts with the “limited time” requirements of copyright law. The Copyright Act protects works of art for a fixed period of time, the life of the author and 70 years after the author's death. But by this decision, the laws of individual states would remain unaffected.
Serb Commander arrested and ready to face trial
A senior Bosnian Serb commander was arrested in Serbia, and later taken to The International Criminal Tribunal for the Former Yugoslavia at Hague, where he would face life in prison on the charges of genocide, complicity in genocide, murder, persecutions and forced transfers. Ljubisa Beara, a former colonel in the Bosnian Serb army, has also been accused of executing 8,000 Muslims in Srebrenica in 1995.
Simplification of Procedures of Transfer of Shares/Convertible Debentures by Way of Sale
Circular No: A.P. (DIR Series) Circular No. 16 Dated 04.10.2004: As of now, transfer of shares, by way of sale, by a person resident in India to a person resident outside India (i.e. to incorporated non-resident entity other than erstwhile OCB, foreign nationals, NRI, Foreign Institutional Investor (FII)) required prior permission of the Government followed by approval from Reserve Bank. RBI has vide this notification, simplified the procedure by dispensing with the requirement of obtaining prior approval of the Government (FIPB) in respect of transfer of shares/convertible debentures, by way of sale, from residents to non-residents (including transfer of subscriber's shares) of an Indian company in sectors other than financial service sector (i.e. Banks, NBFCs and Insurance), subject to certain conditions. This move is to make the environment in India more attractive to foreign investors.
Amendments in the Schedule of DEPB Rates in Respect of Engineering Products
Public Notice No: 13/2004-09 Date: 06.10.2004: The Director General of Foreign Trade vide the above public notice provides for DEPB (Duty Entitlement Pass Book) rates in respect of Engineering Products in the current schedule.
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