Quote of the Day - It is dangerous to be right when the government is wrong.
Balancing New Listings Against Critical HabitatYesterday, the Center for Biodiversity filed suit in federal court in Riverside (#4) over the designation of critical habitat.
So far, the federal government has not designated critical habitat for the six rare wildflowers (that's an especially attractive flower, isn't it?). The CBD, joined by the California Native Plant Society want habitat designated.
The Interior Department generally prefers to focus it's resources on adding species to the Endangered Species List. But, part of the mandate of the Endangered Species Act requires the designation of critical habitat, and when the Interior Department gets sued over it, it generally loses.
So, we have another lawsuit now to designate habitat the San Bernardino and San Jacinto mountains.
The CBD and CNPS claim that these flowers appear nowhere else on earth other than right here in our local mountains (I know, it's redundant), and they deserve to be protected with a critical habitat designation. The USFWS wants to move on to new species.
Possible solutions: more money to the USFWS or revamp the law. But it seems a waste to file a suit to force the government to follow the law. Isn't that what it's supposed to do anyway?
Patent Privilege ProtectedWell, the attorney-client privilege is alive and well again in the patent arena. Overturning some twenty years of precedent, the newly-decided case of Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corporation, et al. took care of a nasty issue for patentees.
It used to be that if a patentee refused to provide a lawyer's opinion that a patent was not infringing, then the judge could infer that a company willfully infringed a patent. Now, that's no longer the case. No longer are companies required to waive the attorney-client privilege to prove a lack of willful infringement.
For those companies, however, that have already waived the privilege and are in the midst of litigation, it's too late. Once the privilege is gone, it's gone.
Trio of Hurricanes Stir Memories of NorthridgeWhether by hurricane or by earthquake, the devastating loss of property and life in connection with these natural disasters is always tragic. So too are the enormous economic ramifications, which ripple far and wide for a long time afterwards. It was only thirty days ago today that Hurricane Charley came to shore near Punta Gorda, Florida, causing nearly $7 billion in damages. Three weeks later, Hurricane Frances struck the Florida Panhandle, inflicting an additional $2 to 4 billion in damages. Now, Hurricane Ivan lurks off the west tip of Cuba, positioning itself for yet another possible assault on Florida. As I looked at the destruction that these hurricanes have left in their wake, I found myself reminiscing about the aftermath of the Northridge Earthquake.
For those of us who are Southern Californians, (you remember. . .) it was 4:30 a.m., January 17, 1994, when an earthquake measuring 6.7 on the Richter Scale shook us out of bed. The epicenter of the earthquake was located 20 miles northwest of Los Angeles, nine miles beneath San Fernando Valley. The direct cause of the Northridge Earthquake was the sudden rupture of a previously unknown, entirely subsurface (i.e., “blind") thrust fault. In a span of forty seconds or less, at least 57 people died, 12,000 were injured, 200,000 homes and apartments were destroyed or damaged, another 114,000 buildings were destroyed or left uninhabitable, thousands of vehicles were destroyed or damaged, and several major roads and bridges were left unuseable.
Several days later, nearly 10,000 homes were still without electricity, 20,000 homes and offices were without gas, and twice that number were without water.
600,000 insurance claims were filed after the Northridge Earthquake; total insured losses reached $15.3 billion, making it the most costly insurance disaster in U.S. history. In addition, economic losses were estimated between $40 to $50 billion, making it not only one of the worst natural disasters, but also the costliest seismic disaster in the United States. Insurance losses were 28 times greater than the premiums recovered in 1993, causing some insurers to teeter on the edge of bankruptcy. Other large insurers debated withdrawing from the California homeowners insurance market altogether because California law required insurers to offer earthquake coverage to new home buyers. Under heavy siege from the insurance lobby in Sacramento, the California Legislature in 1996 created the California Earthquake Authority, allowing insurers to offer earthquake coverage to homeowners on policies written by the CEA – not themselves.
Not surprisingly, seventy percent of the insurance companies doing business here in California joined the CEA, which effectively allowed them to cancel all of their existing earthquake clients and stop offering their earthquake coverage to new homeowner clients. While this legislation solved the insurance companies’ problem of being overexposed to earthquake losses, it coincidentally resulted in premiums that were double in size and with severe limits on the insureds’ ability to collect claims. State surveys show that the percentage of homeowners that purchased earthquake insurance dropped from 32% to 20% after the CEA was offered. Thus, the Northridge Earthquake singularly changed the homeowners insurance landscape in the State of California.
Just 36 hours before Hurricane Charley’s landfall, Tropical Storm Bonnie struck the Florida Panhandle near Apalachicola. The significance of Bonnie, however, is not that she arrived in Florida but when she came to shore. Not since 1906 have two storms struck the State of Florida so close together. It was an omen of bad things yet to come.
Charley, rated a Category 4 storm with sustained winds estimated at 145 m.p.h., struck Florida’s west coast about 4:30 p.m. on August 13, 2004, with awesome force, toppling trees, snapping utility poles, and ripping the roofs off of homes and buildings. At least 27 people died. Within an hour of Charley reaching shore, over 700,000 people were without power. Insurers are likely to pay an estimated $7.4 billion in claims for damage to homes, businesses and personal possessions such as cars. However, that estimate does not include uninsured property and flood damage or huge agricultural losses. If the estimate holds, Charley would be the second-most expensive hurricane in U.S. history, following 1992’s Hurricane Andrew which caused $15.5 billion in insured losses. State officials estimated earlier that damage to insured homes alone could be as much as $11 billion.
To make matters worse, Hurricane Frances stormed ashore near the Florida Panhandle on September 5, 2004, just three weeks later. Not since 1950, when Hurricane Easy and Hurricane King drenched Florida in September and October 1950, respectively, had two major hurricanes struck this state in such a short time period. Although Frances was downscaled to a Category 2 storm prior to arrival, she still packed a big punch, leaving more than 1.8 million Floridians without power and causing 90,000 to seek safety in shelters. In addition, 20,000 farms were caught in Frances’ destructive path, which caused nearly $1 billion in damages to citrus fruit, timber, nursery products, etc. Charley and Frances combined have caused more than $2 billion in damages to Florida’s agriculture, alone, in less than a single month -- that's almost one third of Florida's annual 6.4 billion cash crop receipts.
Now, Hurricane Ivan appears poised to strike Florida and, as if that wasn't bad enough, it’s the largest of the bunch. With sustained winds estimated at 160 m.p.h., Ivan qualifies as a Category 5 storm – that’s the biggest rating that can be assigned to a hurricane – and is already considered to be one of the strongest hurricanes ever to hit the Caribbean. Even if "Ivan the Terrible" doesn’t reach Florida, insured losses will clearly exceed $11 billion, which means that economic losses – if indeed the Northridge Earthquake can offer any realistic comparisons between these two kinds of “ripples” – will likely reach $30 to $40 billion in Florida before this hurricane season is over. If Ivan does hit Florida and inflicts further damage in the days to come, who knows how the landscape will change in Florida and elsewhere as a result of these three hurricanes.
One thing is certain, though. Homeowners insurance coverage for hurricane-related damage surely will be subjected to the same kind of scrutiny and market forces that occurred immediately after the Northridge Earthquake. More importantly, since insurance companies are not in the business of losing money, it's reasonable to assume that the contours of homeowners insurance along Florida's shorelines will never be the same.
Dying for a Discount At CostcoI've been trying to get to some substantive legal news, really, I have. It's just that our appellate courts haven't been cooperating issuing decisions that are covered here. OK, maybe I'll just have to dig deeper. But first, here's this one that I just couldn't resist:
Big box retailer Costco has added caskets to its inventory. Not yet available online, the retailer has offered them in only two Chicago area test stores so far.
I've got a few questions first. Where in the store? Next to the cigarettes?
Not that I'm dying to buy one, but do I have to buy them in a jumbo pack? Or do they come family size, and three-fourths of the casket will go to waste if I need to buy only one? If I decide to put a casket in my basket, will it tip over? Is my truck big enough to hold it? How do I unload it at the gravesite?
Buying caskets at a discount is a good idea, but perhaps Costco is not the best place to make that purchase. At least, though, if you get the casket there, you can get flowers, too.
Mustang Ranch Lives On In NevadaHere's some business news for a Sunday: the Mustang Ranch, closed for some time due to racketeering and fraud charges leveled by the IRS, is reopening.
The last part of the original operation has been moved, saved from the Bureau of Land Management's (don't ask me how they ended up with it - even though that's quite fitting) plan to demolish it.
Looks like it's reputation will live on, saved from the auction block.
I don't make this stuff up, I just report it.
It's Not As Easy As It LooksYep, it's not as easy as it looks. In fact, it's quite challenging, and constantly requires research.
Blogging, that is. Just ask Richard A. Posner, who tried it for a week on Lessig's blog. Posner sits on the Seventh Circuit Court of Appeals.
The ABA reported on Posner's stint, who now says he has no intent to start his own blog, despite requests from many fans. The process is too time-consuming, he says. Here's Sabrina's thoughts on it.
"You have an accumulation of ideas you can express, but if you did it week after week, you’d have to keep generating new ideas," Posner says, "which means you’d not only have to spend a lot of time actually writing the blog, but doing the research and constantly renewing your thoughts."
No kidding! Are there any applicants out there for a stint on MIPTC?
The Majors Start a New Patent FightYou may not know that your favorite breakfast drink is subject to several patents. Yes, an in-depth review of the Minute Maid legal page (how boring can that be?) shows that Coke doesn't actually claim patents, but despite what Coke says or doesn't say, Procter & Gamble does make that claim.
What's the connection? Well, liked a scorned suitor, P&G was upset when it's business deal with Coke didn't go through. Apparently, P&G claims that before the deal went through, Coke took advantage of some of P&G's patented technology to make Minute Maid OJ last longer.
So, like P&G has done so many times before, it sued. P&G claims that Coke stole its patented formula for preserving orange juice and limiting microorganisms.
Microorganisms grow in food, and green chemistry keeps them in check, us safe, and the food lasting longer. P&G claims it has the market cornered on the technology, and is going after Coke to prove it.
Now, the question will become who will pay? The Orange berry that Coke produces or the 13 stars on the old P&G logo?
And the winner is ....
You'll have to stay tuned for the next installment, same Bat time, same Bat channel.
Running Your Business Into RetirementYou've established your business, but now that you're approaching retirement, what do you do?
Sell your business? To your child? If you do, be aware that statistics show that businesses don't last in the third generation, but there are always exceptions.
But, family businesses have been doing well. So well, in fact, that there are businesses about family businesses.
So, you pick a successor and then what? Sit back and watch? Do you take back paper?
Well, there are a lot of questions, and not a lot of answers out there. Probably your best bet is to identify your successor and let him/her get financing from the bank. That way, the risk of failure is not yours.
That's just one of many considerations in selling a business. The larger question may be retire or consult? Do you have a non-compete agreement? Are you obligated to stay on with your old company to ease the transition to the new management?
Some are set to retire early, others work and work and work.
Whatever you do, plan ahead. Then go talk to your lawyer.