UPDATE: House Committee Endorses Asbestos Bankruptcy ‘Transparency’ Proposal

May 14, 2015 By
 
By a 19-9 vote along party lines Thursday (May 14), the U.S. House of Representatives Judiciary Committee has decided to send an asbestos bankruptcy transparency proposal to the full House. The legislation, called “FACT,” for Furthering Asbestos Claims Transparency, would require court-approved bankruptcy trust funds to disclose name, claim and payout information of people seeking payouts from the funds.
 
Dozens of the trust funds have been created to address liability of bankrupt firms facing asbestos exposure liability. Republicans argue that transparency is needed to prevent “double dipping” from people who get paid by both trusts and civil lawsuits; Democrats counter that trusts are a different system and defendants could get the payout information via pre-lawsuit discovery efforts. Both sides claim to have interests of veterans at heart.
 
Watch the sometimes testy debate at the House website archives (note it might take some time to convert the webcast to archive): http://judiciary.house.gov/index.cfm/videos
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First Marijuana RICO Case, Colorado Hotel Claims Lost Business in Civil Suit

May 11, 2015 By
Civil lawsuits continue to muddy the waters in states that have legalized marijuana, with a new Colorado case asserting that selling weed nearby has hurt business at a Holiday Inn. The Summit Daily News is reporting that “… nearly three months after two heartland states sued Colorado in federal court, a Frisco dispensary is now at the epicenter of the first-ever racketeering lawsuit filed against a marijuana business since the advent of legal weed.
 
On Thursday, the Washington, D.C.-based advocacy group Safe Streets Alliance named Medical Marijuana of the Rockies as one of 12 defendants in a federal Racketeer Influenced and Corrupt Organizations Act (RICO) case.”
 
The newspaper said that “… Safe Streets sponsored the lawsuit in partnership with co-plaintiff New Vision Hotels, the Colorado Springs company that owns the Frisco Holiday Inn. Frisco is a tourist-intensive mountain town just west of Denver.
 
Also from the SDN: “This is really the only course of action left for the hotel,” said Brian Barnes, the plaintiffs’ spokesman and one of several attorneys working the case. “They weren’t sure of other options available to them, and the reality is that when people talk about marijuana being legal in Colorado, it is still illegal in the United States and selling marijuana is against the law. They have a legal right to not be injured by that activity.”
 
The Holiday Inn managers had previously asked the Frisco Town Council to deny the license to the marijuana merchants who wanted to operate about 75 yards from the hotel entrance. The SDN reported that “… hotel representatives argued that a prospective marijuana dispensary has already harmed business, citing cancellations from several youth ski teams after the town council debates made national news.”
 
Read the story here.
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CM Publisher Has Her Take On Asbestos-Medicare Issue

May 7, 2015 By
Huffington-Post-LogoSara Warner, publisher of both the California and national Courts Monitor civil justice websites, is concerned that asbestos cancer victims are about to become victims of another kind. If money from settlements or other payments was owed to the government, what happens now? She has posted her take at The Huffington Post, and you can access it here.

 

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Congress’ Judiciary Committees Active On Civil Courts Issues

May 1, 2015 By
The congressional judiciary committees have been active in national civil justice issues, with the House Judiciary looking at “fairness in class actions” and the Senate Judiciary holding a hearing on civil asset forfeiture, which no doubt failed to entertain as much as HBO’s John Oliver did with his take-down of the issue.
 
One interesting note is that reformers are calling for “right to attorney” for people facing civil asset seizures, which can happen even if authorities never file criminal charges. The National Coalition for a Civil Right to Counsel explained it like this: “In response to a Senate Judiciary Committee hearing this morning relating to civil asset forfeiture reform, the Leadership Conference on Civil and Human Rights (“a coalition of more than 200 national organizations”) issued a letter calling for, among other things, a right to counsel in all civil forfeiture proceedings.  Current federal forfeiture law provides a right to counsel only where the asset seized is the defendant’s primary residence.”
Rand Paul, U.S. Senator for Kentucky (official photo)

Rand Paul, U.S. Senator for Kentucky (official photo)

 
The website also noted that “… a number of people testifying at the hearing discussed the need for appointed counsel at these proceedings.  Sen. Rand Paul referred to his “Fifth Amendment Integrity Restoration Act of 2014” that he introduced last year, which he said would provide counsel, and a representative from the Institute for Justice also called upon the provision of counsel to indigent defendants.”
 
On the House side, a bill under discussion would narrow who could directly participate in class action suits and require that “… only that a class be composed of members with “an injury of the same type and extent.” 
 
Read more on the Judiciary Committee website and the National Coalition for a Civil Right to Counsel (NCCRC) website.
 
 
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Attorney-Author Marks BP-Spill Anniversary With Dire Assessment

April 21, 2015 By
An environmental attorney from New Orleans has marked this week’s 5-year anniversary of the huge BP with a truly dire assessment of regulatory inaction, warning in a Los Angeles Times op-ed that the region not only remains at risk, but the “cure” of using dispersant may have been worse than the oil itself.
 
Stuart H. Smith, a high-profile plaintiff’s attorney who turned blogger then author in the wake of the BP disaster, says President Obama said the right things “… but Congress — controlled by Republican lawmakers indebted to their Big Oil campaign contributors — still has not enacted the offshore-drilling safety measures recommended by the president’s Oil Spill Commission. It has not given strong regulatory powers to the agency that replaced the scandal-scarred Minerals Management Service. And it has not raised the ridiculously low cap of $75 million for corporate liability on major spills.”
 
Smith offers this even more unsettling take on the half-decade: “… on the fifth anniversary of the Deepwater Horizon accident, workers continue to clean up tar balls and giant tar mats of weathered BP oil along beaches from Louisiana to Florida. Black crude still clogs the edges of our ever-shrinking wetlands. A recent report by the National Wildlife Federation chronicled significant health damage to some 20 species of marine plants and birds, while people who took part in 2010 cleanup efforts struggle with headaches, nausea and other symptoms.”
 
He contends that “lax government standards for highly toxic dispersants are yet another problem” and that a “string of scientific studies has suggested that exposure to Corexit [the dispersant famously used in bulk during the BP spill] may have been more damaging to the health of cleanup workers and marine life than the initial exposure to spilled oil.”
 
Meanwhile, of course, the civil lawsuits continue to have billions of dollars at stake. Check out the excellent Smith blog, with links to his book “Crude Justice” here: http://www.stuarthsmith.com/
 
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POLITICO Looks Into Judicial Appointment Backlog

April 20, 2015 By

The POLITICO website it taking a look at why the U.S. Senate is allowing a backup on federal appointments, including filling jobs for emergency judges. The report comes after a critical report documented serious delays in civil justice cases, as reported here in the Wall Street Journal.

That WSJ report quoted a seated federal judge in California saying of civil court delays that “it is not justice. We know it.”

Alarmingly, POLITICO says it might be political payback for the so-called “nuclear option” of last year that forced some appointments through to a vote despite the long-standing tradition of needing 60 of 100 votes to move a nomination to a full vote. Reports POLITICO of the GOP-controlled Senate, “… Republicans don’t pinpoint one reason for the major logjam at the judicial level, which has infuriated outside groups intent on seeing the Senate fill 23 judicial emergencies across the nation’s courts. Some argue that Senate Republicans are still getting up and running, while others say the delay is retribution for Democrats’ power play with the nuclear option.”

Read the POLITICO report here.

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WSJ Story Notes Civil Gideon Trend

April 9, 2015 By
The Wall Street Journal is taking notice of momentum for a “civil Gideon” approach to lawsuits involving life-changing decisions, like foreclosure or family custody. The WSJ reports that the newly approved state budget “… allocated $85 million for indigent civil legal services at the request of the state judiciary, an increase of $15 million from the previous fiscal year.”
 
And in New York City, Mayor Bill de Blasio recommended in his preliminary budget proposal spending $36 million on free legal services in housing court, which would bring the city’s total spending on civil legal services up to about $50 million.
 
By way of background, the deep-dive WSJ story noted that the trend has a history of success and “… in 2009, California passed the Sargent Shriver Civil Counsel Act, which created several pilot programs, supported by court fees, free legal counsel in civil cases. In its third year, the program has succeeded despite a modest $8 million annual budget, its coordinators say. More than 15,000 people have been served so far, most in eviction cases.
 
“One of the big takeaways is that attorneys help settle cases,” said Bonnie Hough, managing attorney for California’s Judicial Council. Read the story here: New York Officials Push Right to Counsel in Civil Cases
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Buzz Over NY ‘Silver Case’ Political Scandal

April 2, 2015 By
The asbestos litigation industry is buzzing over how the arrest of a major New York politician might – or might not – create a storyline for other high-volume “magnet” communities, says Courts Monitor Publisher Sara Warner in a new Huffington Post column. Her report includes observations from a recent Beverly Hills industry conference on “cutting edge” issues.
 
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Lawyer, Location Not Law, Determine Fate Of Asylum-Seeking Children

March 13, 2015 By
Access to a lawyer and location of their case is very much more likely to determine the fate of “Border Kids” than laws or other factors, according to a POLITICO analysis that found a “very uneven brand of justice” in U.S. immigration courts. The analysis of government data “… shows that fully 88 percent of the removal orders issued since July have gone to children without an attorney. What’s more, a juvenile assigned to judges in Texas, North Carolina and Georgia in the past 16 months was at least three times more likely to receive such an order than a child in California, Florida or New York.”
 
The resulting POLITICO story implies that the Obama Administration’s “hall pass” on the crisis, which exploded into headlines last summer but diminished in the wake of reform promises, is nearly expired. The D.C.-based publication wrote that “… the same humanitarian crisis that gripped the White House and Congress last year is now a less visible one of American justice. And it still poses a major test for the Obama administration, which promised compassion and fairness in the treatment of the child migrants but also contributed to the current problem by expediting deportation proceedings.”
 
The report is likely a game-changer because it documents the range of outcomes under a “single federal system,” which illustrates it’s anything but a single system. The research compares and contrasts outcome, documenting that “… the number of removal and voluntary departure orders in Texas and North Carolina was 3.5 times the level in California and Florida.
Filed Under: Border Kids, Cases, National

Church-Based ‘Guardian Angels” Step Into Help ‘Border Kids’ Facing Deportation

March 3, 2015 By
A Los Angeles Times report highlights efforts of a Lutheran church group becoming de facto court watchers to make sure the “border kids” – those under-18 would-be immigrants from countries other than Mexico who recently flooded into the U.S. – understand their rights under American law. Advocates say the Justice Department courts that review cases are wildly uneven and outcomes depend largely on legal representation. Those charged in the courts do not have a right to an attorney because the cases are considered civil actions.
 
Reports the LAT: “Because the government does not provide lawyers to immigrants facing removal, many of the children have ended up navigating complex deportation proceedings alone. Last fiscal year, 72% of children in deportation hearings were not represented by an attorney, according to federal data analyzed by Syracuse University’s Transactional Records Access Clearinghouse.”
 
Leaders of the guardian angels program, notes the Times, include the Lutheran pastor “… who hatched the idea last summer after hearing that children’s deportation hearings were being fast-tracked through the court system. More than three-fourths of children’s court cases closed in the second half of last year resulted in removal orders, according to the federal Executive Office of Immigrant Review. In the vast majority of those cases, the deportation orders were issued in absentia because the children did not show up for their hearings.”
 
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