• BANKING

Milavetz, Gallop & Milavetz, P.A. v. United States

Banking - Suit for declaratory judgement - Specified Provisions of Bankruptcy Abuse Prevention and Consumer Protection Act unconstitutional - Bankruptcy attorneys not debt relief agencies - §§101(12A)(A) of Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) - Plaintiff-law firm filed suit seeking a declaratory judgement to the effect that bankruptcy attorneys are not debt relief agencies and that BAPCPA provisions codified in 11 USC § 526(a)(4) are unconstitutional as applied to attorneys - Whether bankruptcy attorneys are debt relief agencies under Bankruptcy Abuse Prevention and Consumer Protection Act

Held, Attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the BAPCPA. By definition, "bank-ruptcy assistance" includes several services commonly performed by attorneys, e.g., providing "advice, counsel, or document preparation," §101(4A). Moreover, in enumerating specific exceptions to the debt-relief-agency definition, Congress indicated no intent to exclude attorneys as per §§101(12A)(A)-(E).

• CIVIL

United States Court of Appeals for the Third Circuit

Russell Bruesewitz; Robalee Bruesewitz v. Wyeth Inc.

Civil - Suit for damages - Medical complications due to design defect of vaccine - Pre-emption of design defect claims against manufacturer of a vaccine - Whether The National Childhood Vaccine Injury Act ("Vaccine Act") preempts all design defect claims against the manufacturer of a vaccine?

Held, Section 22(a) and 22(b)(1) of the Vaccine Act contain express preemption clauses. § 22(b)(1) states that manufacturers shall not be liable for injuries caused by "side effects that were unavoidable even though the vaccine was accompanied by proper directions and warnings." Section 22(b)(2) states that proper directions and warnings will be presumed when the manufacturer "complied in all material respects with all requirements under the Federal Food, Drug, and Cosmetic Act. Once the manufacturer establishes that it complied with federal law, the burden shifts to the plaintiff to establish that either § 22(b)(2)(A) or § 22(b)(2)(B) has not been met. In the instant case, the Plaintiffs have failed to establish either a manufacturing defect or a warning defect claim under the Vaccine Act. District Court's grant of summary judgment in favor of Vaccine manufacturer affirmed.