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Quote of the Day - Katrina could reach category-one hurricane strength before the center reaches the southeastern coast of Florida. - A weatherman
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State Farm Gets Tagged In Katrina Lawsuit

MIPTC promised a follow-up on this story right after Hurricane Katrina hit, and the first of the lawsuit results are starting to trickle in.  State Farm got hit with a $2.5 million punitive damages judgment for its failure to pay a claim submitted by one family it insured.  They had sought $5 million in punitives.

The family claimed that their home was damaged by a tornado that hit during the hurricane, and State Farm their losses were caused by storm surge, an exclusion in the policy. 

Update on January 31, 2007:  Ruling on State Farm's motion to reduce punitive damages, Judge L.T. Senter reduced the punitive damages award to $1million from the $2.5 awarded by the jury.  Judge Senter said even though "clear and convincing evidence supports a finding that Defendant acted in such a grossly negligent way as to evince willful, wanton, or reckless disregard for the rights of the Plaintiffs," the jury's award is almost 12 times the amount of compensatory damages.  Fortunately, Plaintiffs only suffered an economic injury.  It is my determination that a more appropriate punitive assessment against Defendant is the sum of $1,000,000.00, which is between 4 and 5 times the contractual/compensatory damages of $211,222.00," he said in ruling on the motion. 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, January 13, 2007 at 10:13. Comments Closed (0) |

Coast to Coast Internet Radio Goes International To Cover Employment Law

Global business has raised the importance of International Employment Law.   On this week's Coast to Coast, we welcome a global list of guests to cover this topic.  PLease join me and my fellow blogger and co-host Robert Ambrogi as we introduce you to an attorney from the U.S., and employment law practitioners from the UK, Germany and France to discuss the many branches of International Employment Law.

Listen as we hear from U.S. Attorney Nicholas Connon, partner in the law firm of Connon Wood Scheidemantle, Ramyar Moghadassi a dual-qualified lawyer specializing in international employment law at the firm of Moghadassi & Associates in London and New York, Dr. Gerlind Wisskirchen, partner and specialist in employment and labor law at the firm, CMS Hasche Sigle in Koln Germany and Patrick Thiébart, Esq., the head of Franklin's Labor & Employment team in Paris.


Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, January 12, 2007 at 20:42. Comments Closed (0) |

Battle Set Over Sect Leader Warren Jeff's Laptop Contents

Jailed sect leader Warren Jeffs was found with four laptops in his car, and his lawyers want them back from the government, alleging that the contents are subject to the attorney-client privilege.

While the battle between the government and Jeffs' attorneys may have some prurient interest, business owners and others need to be concerned.  Concerned about their own laptops and computer data.  Documents exchanged between an attorney and her client need to be protected from disclosure, and you can take steps to protect these communications.

In our law firm, we use the following warning on attorney-client privileged documents, and we encourage our clients to do the same:  "Confidential Attorney-client Communication  This communication is protected by the attorney-client privilege. It must not be disclosed to any other party and should be treated in a confidential manner.  California Evidence Code sections 950, et seq. and Federal Rules of Evidence, Rule 501."  Other states have similar rules; contact your local lawyer.

Then, when you want your private documents back, it will be easy to identify them. 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, January 11, 2007 at 12:04. Comments Closed (0) |

No Matter How Smart You Are, Crime Doesn't Pay

Here's how the Associated Press story starts out:  "Ivy League professor Rafael Robb was an expert in game theory, a complex melding of psychology, human behavior and economics -- all aimed at determining what one's adversary will do next."

With that kind of a resume, you think he could outsmart just about anybody.  The police, however, disagree, as you can see in the rest of the story, here

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, January 10, 2007 at 11:52. Comments Closed (0) |

Who Shares In The Profits From The Charlie's Angels Movies?

Out here in La-La land, we occasionally get not your average contract cases.  Take, for example, a recent one involving Robert Wagner, Natalie Wood, Spelling-Goldberg Productions and Columbia Pictures, Inc., along with the Writer's Guild of America and two writers, Ivan Goff and Ben Roberts, as well as everyone's lawyers.  It certainly makes for interesting reading compared with some of the more mundane contract cases.  It's just hard to apply them in real life since most of us aren't involved with the entertainment industry.

But for those that are, this case is a wonderful primer.  The ruling sets the record straight whether writers, actors, producers or studios own movie rights unless the parties otherwise deal with those rights by contract.  Here's the short version:  The writers do, thanks to the "Separated Rights" under the the 1970 Writers Guild of America Minimum Basic Agreement

How the court gets there involves a lot of twists and turns.  It starts out with an agreement between Wagner and Spelling-Goldberg Productions, which provided that Wagner was to receive 50% of the profits "for the right to exhibit photoplays of the [Charlie's Angels] series and from the exploitation of all ancillary, music and subsidiary rights in connection therewith."  The other 50% belonged to the producers, Spelling-Goldberg Productions.

Fine, you say, then it looks like Wagner should share in the profits from the movies.  Not so fast.  You overlooked what was being divided up 50/50. 

That's where the Writers Guild Minimum Basic Agreement comes in.  Under that agreement, when a producer asks a writer to draft a script for a pilot television show, the writer retains the motion picture rights to the series.  There's one caveat.  The agreement between the writer and the producer can change the terms of the MBA, but in this case, the agreement between Goff/Roberts and Spelling-Goldberg didn't.  Otherwise, under the MBA, the producer has the right of first refusal if the writer tries to sell those rights for five years, but after that, the motion picture rights can be sold on the open market to any studio or producer who's willing to pay the writers for them.

In other words, the contract between the actors (Wagner and Woods) and the producers (Spelling-Goldberg) couldn't divide up the motion picture rights because they still belonged to the writers (Goff/Roberts). 

Just to fill in one of the blanks necessary to understand what comes next, you may remember that back in 1982, Spelling-Goldberg sold its production company and everything it owned to Columbia Pictures.  There's several more blanks in the court's opinion worth your time, but for this short post, that fact will get you by. 

Later then, when Columbia Pictures decided to make the Charlie's Angels television series into movies, they went and bought the movie rights from the writers.  When Wagner and Woods sued Columbia for a split of the profits from the movies based on their agreement with Spelling-Goldberg Productions, the court reasoned that the movies rights weren't part of the 50/50 split and denied Wagner and Woods any recovery from Columbia. 

It all sounds easy now, but the court noted that it took subsequent briefing and two oral arguments by the attorneys to get it right.  Even then, Footnote number 1 cryptically states, "If we have erred in our resolution of the issues it was not for counsels' lack of effort to set us straight."   That caveat points to what most certainly will be an appeal of this case.  We may not have heard the last of who owns the rights to the Charlie's Angels movies. 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, January 09, 2007 at 21:19. Comments Closed (1) |

Courts Can't Order Parties To Mandatory Mediation

"We forsee no apocalyptic consequences of this decision."  Those are the yet-to-be-famous words of the Court of Appeals at the end of its decision to strike down a Court order that forced an uninsured defendant to participate in and pay for a mandatory mediation, despite an inability to pay, an undemonstrated liability and work that had no relationship to the matter being litigated.

Talk about facts that make the case.  Here's how the Court of Appeals phrased part of its ruling:  "it serves no purpose to force Jeld-Wen, an uninsured litigant and minor player in this complex action, to attend mediation where the combined costs of the mediator and attorneys fees expended to attend multiple mediation sessions could exceed the amount of the claim against it."

In the world of construction litigation cases, while some parties settle for what are likely legitimate claims, many are simply worn down by endless mediation, escalating costs and no hope for escape.

Well, here's the eject button:  Jeld-Wen v. Marlborough Development Corp

In this decision, the court of appeal reversed a trial court's order that forced a minor litigant to participate in a major mediation.  The court ruled that mediation is supposed to be voluntary, and unless the parties all agreed to participate in the mediation, then the trial court didn't have the authority to order the parties to participate in mediation where the amount sought exceeds $50,000.  The court also ruled that trial courts have no inherent authority to order parties to participate in mediation without consent, and the court can't threaten or impose sanctions to get the unwilling party to participate.

The court did say that a court could require a party to participate in one mandatory settlement conference and with some procedural machinations require a party to participate in the payment of a referee to conduct that MSC, but those instances will be very rare. 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, January 08, 2007 at 21:55. Comments Closed (0) |

Should You Worry That The Space Shuttle Was Built By The Lowest Bidder?

How About The Judiciary?

Let's take that first question and apply it to the law, as intimated by the subheading.  Who do you want as your judge?  As a practitioner, I know that clients worry about the intellectual makeup of the judge who will decide their case.  They want to know the judge's background, education, past decisions and general reputation.  While we can provide judicial profiles, those reports don't tell the whole story.  With nearly 20 years under my belt, I've appeared before most of the judges in the several jurisdictions where I practice, so I can offer a little more insight than those written profiles.  What I've started to see, however, worries me. 

Most clients and lawyers would prefer that the best and brightest sit on the bench to decide cases.  We have good judges on the bench now, and as Chief Justice Roberts notes, unless Congress (and, by the way, the 50 states' legislatures) raise salaries, judicial independence will be threatened.  I'd take it a step further.  As a society, we need keep the salary of judges commensurate with that of private practitioners.  Think about it this way:  Why would a top lawyer leave private practice to serve on the bench, only to take a pay cut?

Sure, there are some judges who are altruistic and dedicated public servants, and we all thank our lucky stars for their dedication.  To retain the best and brightest judges on the bench, we need to elevate judicial salaries to match those in the private sector.  As just one example, I know many judges who have been lured off the bench early by mediation and arbitration services where salaries are equal to the private sector.  Likewise, the converse is true.  To attract those lawyers from private practice who would make good judges, judicial salaries need to be commensurate with private practice. 

Otherwise, if we continue to have a brain drain from the bench and little or no infusion of highly qualified lawyers to sit on the bench, litigants will have good reason to worry.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, January 07, 2007 at 14:43. Comments Closed (1) |

Who Owns The World?

Forget Viagra. Try Maca Root In Moonshine To Increase Your Libido.

In Peru, indigenous Quechua Indians have for hundreds of years used Maca root to increase the flow of oxygen to blood, largely to deal with the lack of oxygen at their high altitudes.  The root, especially when certain elements are extracted in alcohol (moonshine), produce the "side effect" of increasing libido due to the increased blood flow and oxygen. 

Given the runaway success of Viagra (if measured only by the number of emails that flood the Internet), you can understand why one U.S.-based company was more than happy to "discover" the root's propensities.  That company, PureWorld Botanicals in South Hackensack, NJ, quickly patented the derivative product.  That patent, however, flies in the face of the 1192 Convention on Biological Diversity, developed at  the Earth Summit in Brazil.  That Convention entitles nations to a share of the profits from substances yielded by their flora and fauna, obviously excluding Peru here given PureWorld's patent.  Some 188 countries ratified the Convention.  Notably absent is the United States as a signatory.

This Associated Press article (free registration required) notes that a "2005 U.N. University report concluded that 62 percent of all cancer drugs were created from bioprospecting discoveries."  For example, "the venom of a deadly sea snail found off the coast of the Philippines led Elan Pharmaceuticals Inc. to develop the painkiller Prialt, which U.S. regulators approved in 2004.  The key ingredient in the breast cancer drug Taxol owned by Bristol-Myers Squibb Co. is taken from the bark of the yew tree, and Wyeth's kidney transplant drug Rapamune comes from Easter Island soil," according to the article's author, Rick Veccio.  Examples of other substances abound, from penicillin to quinine. 

Interestingly, quinine comes from the Cinchona tree, which is featured prominently on the Peruvian flag.  You may remember that quinine was developed from the bark of the Cinchona tree, which was taken back to Europe in 1630 by Jesuit priests and largely cured malaria.  The tree remains on Peru's flag as a reminder that it did not share in the wealth created from this "discovery."

Peru is now trying to follow U.S. patent law and overturn the issuance of PureWorld's patent by claiming that patenting the company's alcohol extraction process is barred by the prior art of the moonshine derivation practiced by Quechua Indians for centuries.  They charge that U.S. bioprospecting robs them of the rewards of their natural resources.  Others, according to the AP article, claim " 'PureWorld, which did all of this work, found compounds that nobody knew existed before,' said [Chris] Kilham, a professor of ethnobotany at the University of Massachusetts at Amherst."

For their part, the Peruvians believe "the root is nature's bounty and belongs to everyone and to no one in particular." 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, January 06, 2007 at 15:34. Comments Closed (0) |

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