The last few presidential races have been marked by tremendous increases in fundraising and spending. President Obama raised $745 million in 2008, twice what former president Bush raised in 2004 and more than four times what the Bush campaign raised in 2000. [1] With the primary season just over a month old, 2012 is shaping up to be no different. Both President Obama and his eventual Republican rival are poised to raise more than $1 billion, making 2012 the first multi-billion dollar campaign in history. [2]

After the Supreme Court’s decision in Citizens United, which lifted spending limits on corporations in elections, speculation ran rampant about how the decision would affect elections moving forward. Supporters of the decision argued that allowing corporations to give unlimited amounts to political action committees represented a real victory for free speech, while opponents worried that the unfettered spending would irreparably corrupt politics and elections.

Early indicators show that, for good or for bad, money will play a huge role in the 2012 election. They also show that large amounts of money, easily and quickly raised by a few wealthy donors or corporations, can have an influence on election results. A last minute infusion of money by the pro-Newt Gingrich super-PAC Winning Our Future helped him close the gap in South Carolina and defeat Mitt Romney. [3] Not to be outdone, groups supporting the Romney campaign spent more than $15 million in Florida, airing a deluge of negative ads. [4] The amount spent on behalf of Mitt Romney in the single state of Florida is more than presidential candidate John McCain spent during the entire primary season in 2008.

Political movements like Occupy Wall Street and public officials, including President Obama, are helping to keep the issue of money in politics at the forefront. Comedian Stephen Colbert has used his television show to mock the laws governing super-PACs mercilessly, exposing the ease with which candidates can collaborate with corporate donors. In his recent State of the Union address, President Obama called for an end to the “…corrosive influence of money in politics,” [5] although he stopped far short of asking for action to change the fundamental workings of campaign financing.

Since the State of the Union, Congress has acted on insider trading rules. The Senate has already passed a bill preventing members of the executive branch, Congress and their staff from making trades based on their knowledge of non-public information. The STOCK Act (Stop Trading on Congressional Knowledge) has more than 270 co-sponsors in the House and will likely pass. [6]

While these measures have predictable public support and will likely be good for the democratic process, they miss the mark on big money influence. Other bills receiving far less attention are quixotically attempting to take real action on the issue. In the Senate, S.J. Res.29 is a joint resolution proposing a constitutional amendment that would allow Congress to regulate the raising and spending of money in elections. [7] The bill is sponsored by Senator Tom Udall (D-NM) and 22 co-sponsors. In the House, H.J. Res.78, proposed by Representative Donna Edwards (D-MD4), also proposes a constitutional amendment to address the Citizens United ruling. [8] Given the high hurdle for passage of a constitutional amendment, two-thirds of Congress and three-quarters of the states, and the opposition to such measures by Republicans, neither resolution is likely to even come up for debate.

Attempts at tackling campaign finance reform must do so by addressing one or more underlying constitutional issues. The first is that money spent in political contests to influence elections is tantamount to speech. The second, and the most widely attacked, is that corporations are people, subject to the protections extended to natural citizens under the First and Fourteenth Amendments.

In constitutional terms, the argument that money equals speech is relatively young. After the 1972 presidential election and the ensuing Watergate scandal, Congress amended the Federal Election Campaign Act of 1971 to enact strict campaign finance reform. According to Fred Wertheimer, a former attorney for Common Cause, before the enactment of disclosure requirements, “Contributors were literally flying into Washington with satchels of cash.” [9] President Nixon secretly raised millions of illegal dollars from corporations, the details of which came out during the Watergate hearings. The 1974 amendments limited donations to political candidates, limited personal expenditures by candidates, placed a $1000 cap on independent expenditures, required disclosure of political contributions and established public financing of presidential elections. [10]

The law was overturned in part in the Supreme Court’s 1976 decision in Buckley v. Valeo, a case that set the precedent for treating money as protected speech. The decision contained two important conclusions. First, the Court held that limits on donations made directly to political candidates were constitutional. Such limits protected the “…integrity of our system of representative democracy” by limiting corruptive practices. [11] However, the Court also found that limits on independent expenditures, personal expenditures by candidates and total campaign expenditures violated the First amendment. [12] The reasoning was that money, in the form of political donations, could be seen as a form of expression and that the quantity of an expression cannot be limited. The conclusion that independent expenditures were protected speech also rests on the assumption that donations not made directly to candidates do not have a corruptive influence.

Opponents of the Court’s decision in Buckley believe that the decision displayed a flawed understanding of the First amendment and political corruption. The overall focus of the entire Bill of Rights, they argue, is to provide recourse for the people (the many) against the government (the few). The right of people to speak and assemble particularly implies the right of people to come together in small “d” democracy. The intent is to empower people against the dominance of elites. But a ruling that a single individual or corporation can spend unlimited amounts has the opposite effect, empowering the few over the many. [13]

The reasoning in Buckley has been upheld in subsequent decisions. It is commonly accepted legal theory that money given directly to candidates corrupts, but that money given to groups supporting a candidate does not.

The second and more contentious legal underpinning of Citizens United is that corporations are people. The idea that corporations should have some of the rights granted to natural people is long-standing and relatively non-controversial. Corporations are legal entities and have to be able to perform basic business functions like signing contracts. They should also be able to sue and be sued. But the concept that corporations deserve all the rights of real people has its basis in a questionable clerical decision in the late 1800s.

The case, Santa Clara County v. Southern Pacific Railroad (1886), involved a tax dispute between a railroad company and local municipality. While the actual question was narrow, the ability of the county to tax some railroad assets, Southern Pacific pushed for the Court to consider the idea that corporations are natural humans under the Fourteenth Amendment. But the Supreme Court did not rule on that issue. It agreed with Southern Pacific on the narrow issue, held no discussion and did not issue an opinion on the idea of corporate personhood under the Fourteenth Amendment. [14]

The precedent comes from a headnote, written by court reporter, J.C. Bancroft Davis, a man with ties to the railroad industry as a former president of the Newburgh and New York Railway Company. The headnote states, “…corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.” [15] Regardless of the fact that idea was nowhere in the actual opinion, Santa Clara County has been used for more than a century as precedent for providing rights to corporations as natural people.

Chief Justice William Rehnquist, a notable conservative, pointed to the fact that the Court had entered into no official discussion of corporate personhood in Santa Clara County in his dissent in Bank of Boston v. Bellotti (1978). In Bank of Boston, the Supreme Court ruled directly that corporations had a First Amendment right to spend money in order to influence or affect elections. Rehnquist’s dissent stated, “It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes […] It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” [16]

The two proposed amendments currently languishing in Congress confront this precedent in different ways. The Senate resolution contains two articles, one permitting Congress to regulate expenditures at the federal level and one permitting regulation at the state level. It makes no mention of corporate personhood but would overturn both Buckley and Citizens United by giving Congress the authority to regulate financial political expression. The House resolution gives Congress the power to regulate all corporate political activity, including speech, and expressly protects press freedom. It also makes no mention of corporate personhood.

Various amendments being proposed by outside groups propose limiting the concept of corporate personhood to various extents. The group Move to Amend has proposed an amendment that strips corporations of all rights under the Constitution, [17] a legally and logistically questionable idea at best.

American Prospect editor Mark Schmitt argues that a constitutional amendment is the wrong way to tackle Citizens United. The political and legal hurdles that must be cleared, he says, make the push an exercise in futility. [18] But that alone should not stop people to push for amendments. Many changes to the Constitution were exercises in futility at some point, but consistent advocacy can sway public opinion over time. The focus, he argues, should be on redefining the understanding of corruption. Amending the Constitution to take away a right is contrary to the spirit of the Bill of Rights, which grants freedoms to citizens. However, since corruption is a legitimate public concern, it could be used as an argument in favor of curbing unlimited expenditures. [19]

None of the freedoms enumerated in the Bill of Rights, including speech, are absolute. The Supreme Court has consistently shown a willingness to limit certain types of speech if there is a balancing interest. The amount of money that may be contributed directly to individual politicians and political parties has been weighed against the problem of corruption. Limits also exist on certain means of expression, types of inflammatory speech, the number of people who may assemble at one time or in one place and even the ability of groups to hand out literature. The makeup of the Court has and will continue to determine what interests are are given the most weight.

Sources
[1] http://www.opensecrets.org/pres08/totals.php?cycle=2008

[2] http://www.npr.org/2011/02/18/133809150/2012-the-year-of-the-billion-dollar-campaigns

[3] http://www.huffingtonpost.com/2012/01/20/newt-gingrich-south-carolina-super-pac-spending_n_1219093.html

[4] http://thecaucus.blogs.nytimes.com/2012/01/31/92-percent-of-ads-in-florida-were-negative/

[5] http://www.whitehouse.gov/the-press-office/2012/01/24/remarks-president-state-union-address

[6] http://www.bloomberg.com/news/2012-02-02/senate-votes-to-tighten-ban-on-insider-trading.html

[7] http://www.opencongress.org/bill/112-sj29/show

[8] http://www.mainstreetinsider.org/90secondsummaries/?p=520

[9] http://www.nytimes.com/2010/10/17/weekinreview/17abramson.html?pagewanted=all

[10] http://en.wikipedia.org/wiki/Federal_Election_Campaign_Act

[11] http://www.oyez.org/cases/1970-1979/1975/1975_75_436

[12] Id.

[13] http://www.acslaw.org/files/Kreml%20Issue%20Brief.pdf

[14] http://www.hightowerlowdown.org/node/664

[15] http://en.wikipedia.org/wiki/Santa_Clara_v._Southern_Pacific

[16] http://scholar.google.com/scholar_case?case=3768819597963662504&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[17] http://movetoamend.org/amendment

[18] http://www.tnr.com/article/politics/99833/constitutional-amendment-citizens-united

[19] Id.

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

The Commonwealth of Massachusetts has been on the front end of several legal trends during the past few years from same-sex marriage to health care reform. Last fall, Massachusetts passed sweeping alimony reform laws advocates hoped would bring the commonwealth into the 21st century.

The new law eliminates lifetime alimony judgments and puts caps on the number of years people will receive alimony based on the length of time they were married. [1] Other states have taken notice. Florida and New Jersey have introduced legislation in the 2012 session to update the alimony laws.

Reform advocates argue that state laws regarding lifetime alimony were drawn up in a bygone era. In the mid-20th century, the social norm of the wife staying home to raise the children and forgo her career to tend to the family led to lifetime alimony laws that respected the possibility that women were, in fact, less likely to be able to start a career later in life and they should be compensated as such.

Today many women see that thinking as antiquated. Judge Jeanine Pirro, who has a show on the Fox News Channel called “Justice with Judge Jeanine”, recently spoke in favor of eliminating lifetime alimony because it simply implies that women have inferior opportunities. [2]

“To me, it supports the idea of women being dependent on men,” she said in a January interview on Fox. “The whole concept of alimony is rooted in an archaic thought that women need to be supported by their husbands.”

Opponents to alimony reform in Florida argue that the law has been written by men with no regard for women and family issues, and that it could deal a crushing blow to women who have spent a lifetime in a supporting role and are left later in life when their job opportunities are limited. About 90 percent of Florida alimony payers are men, according to a November opinion piece in the Orlando Sentinel. [3] The Florida House and Senate are debating separate versions of an alimony reform bill in the 2012 session.

In Massachusetts, bills failed to pass through the Legislature until the state appointed a task force made up of a cross section of reform advocates and family law attorneys with strong and different opinions to debate what needed to be done. According to the Boston Globe, the only consensus among task force members was that the existing system was broken.

The Massachusetts compromise eliminates lifetime alimony and ties the number of years of payment to the number of years in the marriage. In a move to satisfy some family law attorneys, it also allows for alimony in the case of some shorter-term marriages that might not have qualified at all before so that there is time for one party to get back on his or her feet, according to the Boston Globe.

Also under the new Massachusetts law, a judge can eliminate alimony payments when the person receiving alimony begins to live with another person in a “marriage-like situation”. Those involved in the business of divorce in Massachusetts say the new law provides a better and more contemporary roadmap for divorcing couples, family lawyers and judges.

In giving everyone a clear understanding of what kind of outcomes to expect with regards to alimony in a divorce hearing, parties might be more likely to reach a settlement. In the past, divorcing couples were spending many thousands of legal fees trying to squeeze every nickel from each other. The man who started the Massachusetts Alimony Reform movement spent $250,000 in legal fees to reduce his alimony payment by $42,000 a year, according to the Boston Globe.

Another possible side effect to the changes in the law is that people might be more inclined to think twice about new commitments. In most cases, lifetime alimony judgments are nullified when the payee gets remarried. An unintended consequence of that provision is that it discouraged people from making new marital commitments. The new law in Massachusetts and the Florida proposal both address this phenomenon with rules that say as soon as the payee takes up with another partner, the alimony payment is subject to review.

The partner’s new boyfriend/girlfriend phenomenon is a big part of the platform pushed by Florida Alimony Reform’s Alan Frisher. He told The Huffington Post that people cohabitate with a new boyfriend or girlfriend for decades while continuing to collect alimony from their former spouse. [4] One of the bills making its way through the Florida Legislature could even punish a payee for hiding a supportive relationship by making him or her refund alimony paid during the new relationship.

Reform advocates say lifetime alimony is inconsistent with the spirit of the law. So, is alimony about helping a divorced spouse get back on his or her feet? Or is it about punishment?

Fox News’ Judge Pirro argued that the spirit of alimony is helping someone who legitimately needs financial aid get restarted with his or her life. To say that alimony should last forever implies that that person is incapable of getting on with his or her life.

Laws are now being considered in New Jersey that could change the rules that allow for lifetime alimony awards after as few as 10 years of marriage. [5] Judges in the Garden State use 13 factors including duration of the marriage, age and health of the divorcing couple and earning potential at the time of the split. Judges are not looking at other factors like why the marriage is breaking up or the financial responsibility of the divorcing partners, according to the report by Fox News.

Grassroots movements in Virginia, Arkansas and Connecticut are in the beginning stages of getting new laws considered by their state legislatures. Laws in Florida and New Jersey are both long shots to get passed this session, especially since the Florida Legislature is working on redistricting this year. But as the issue gets debated and gets more coverage, more and more states are likely to consider bringing alimony laws into the 21st century.

Sources
[1] http://articles.boston.com/2011-09-26/news/30204977_1_alimony-law-family-law-alimony-payments

[2] http://video.foxnews.com/v/1389167805001/fight-to-change-nj-alimony-laws/

[3] http://www.orlandosentinel.com/news/opinion/views/os-scott-maxwell-divorce-alimony-112011-20111119,0,3431551,full.column

[4] http://www.huffingtonpost.com/elizabeth-benedict/usa-today-on-florida-and-_b_1216240.html

[5] http://www.foxnews.com/politics/2012/01/11/new-jersey-looks-to-update-alimony-rules-after-advocacy-groups-shudder-at/

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

This complex case started out with good intentions, but somewhere along the way things went awry, and now a man may pay for those good intentions with his life.

This case involves a Pennsylvania couple suing a high profile medical center after doctors transplanted the woman’s kidney to her significant other, in spite of tests showing she had hepatitis C. But the story gets worse from here. [1][2]

Michael Yocabet and Christina Mecannic of Greene County, Pennsylvania say Michael does have the potentially fatal liver disease due to his April 6, 2010 transplant at the University of Pittsburgh Medical Center. The idea of the transplant, because she was compatible, was to save his life. Ironically, it may ultimately kill him as treatment for hepatitis C could harm his new kidney, leading to organ failure and death.

Yocabet, a Type 1 diabetic with diabetes related kidney disease, was in dire need of a kidney before his operation as his dialysis was not doing what it should for him. Christina stepped in to help, and that is when their world blew up. She made the decision to donate her kidney, after doctors indicated a kidney from a living donor was often more successful than a kidney donated by a deceased person. There are now two medical malpractice lawsuits pending for medical negligence against the staff at the hospital’s kidney transplant center that involve a nurse, four doctors and the University of Pittsburgh physicians and UPMC Presbyterian.

The suit indicates the transplant team missed a critical blood test taken January 26, 2010; this test clearly showed Meccanic had the hepatitis C virus. They also apparently did not make a note of the results of that blood test before the transplant. In fact, the hospital did not tell her the results or dismiss her as a donor. One of the transplant surgeons noted that Meccanic would be an excellent candidate to donate a kidney.

Over the three month time period between the blood test and positive hepatitis C results, the hospital did not add this critical information to his or her file, nor discuss the results of the test. What were they doing? Why was the information not entered? And, here is another strange thing, the second blood test taken April 22, 2010 (remember the transplant was April 6) confirmed Meccanic had hepatitis C.

She was still not told the results of the test. Instead, the hospital analyzed her viral load, and called Yocabet in on April 29, 2010 for blood tests. It was not until May 6, 2010 that the hospital called her to a meeting where they suggested she was having an affair with another man, took drugs and told her she had hepatitis C. The reality is that Meccanic, a retired licensed practical nurse, was exposed to blood while working in nursing homes. She did not manifest any symptoms and was not a drug user.

Here is where things went from bad to worse. The hospital doctors began asking Meccanic if she cheated on her significant other, then suggested she used cocaine and said she could make a choice to keep the results of the diagnosis secret from Yocabet. Meccanic and Yocabet had been in a stable relationship for 21 years, and he had fathered her 18-year-old son. [3][4]

Stunned into shock, Mecannic told the hospital and the surgeon she was going to let Yocabet know immediately about the diagnosis as it played a huge part in not only the success of the transplant operation but his continued good health. There was more upsetting news to come when the couple was accused by the hospital of telling the media about the egregious mistake the hospital made. Whether they had or not was really not the point of this case.

The hospital insisted there was no attempt to cover the situation up, yet they shut their transplant center down for two months, demoted a surgeon, suspended a nurse and called in investigators from the United Network for Organ Sharing. These were all good decisions but the one decision that would have likely saved this man’s life by giving him a healthy kidney was not made. Instead, the surgeon chose to transplant a kidney infected with hepatitis C; a situation which compromises the UPMC hospital’s assertion that their only priority is the well-being of their patients.

During the course of a year close to 6,200 kidneys are donated to others in the U.S. by living donors and about 10,400 from deceased donors. Even though at least 28,000 kidneys are donated, there are close to 113,000 people waiting for one. At least 6,500 people die while they are waiting for a kidney transplant. [5][6][7]

It is relatively rare that people die later from an infected kidney. In fact, in checking the statistics for the longest living kidney transplant, the world record may well go to two Americans, Denice Lombard and Bill Thompson. Lombard, who hails from Washington, D.C., received a kidney from her dad in 1967 when she was 13-years-old. Thompson received his in 1966 when he was 15-years-old. [8]

Following closely behind Thompson and Lombard is the second longest living kidney transplant recipient, Annemarie Grosskopf of Johannesburg, South Africa. She received a kidney from a deceased donor when she was 21-years-old in 1981.

What happened in this instance? Living donors may be screened for a wide variety of infections that include rare diseases, HIV and even syphilis. However, even though the standard is to test for HIV, there are no other stated prerequisites for testing living donors, which means screening may be different at various transplant centers.

Ironically, this lawsuit’s timing is almost serendipitous, as the Centers for Disease Control and Prevention are working on draft guidelines that mandate even more thorough donor screening and testing. Part of the new mandate includes testing for HIV, hepatitis B and C. [9][10]

It will be interesting to see how a jury reacts to the evidence and what their verdict will be. It is a shocking case, but the circumstances could happen to anyone more often than previously realized.

Sources
[1] http://www.msnbc.msn.com/id/44599555/ns/health-infectious_diseases/t/couple-sues-hospital-after-he-gets-her-infected-kidney/

[2] http://www.msnbc.msn.com/id/37624303/ns/health-infectious_diseases/t/infected-organs-pose-deadly-transplant-risk/

[3] http://www.msnbc.msn.com/id/44599555/ns/health-infectious_diseases/t/couple-sues-hospital-after-he-gets-her-infected-kidney/

[4] http://www.illinoisinjurylawyerblog.com/2011/12/hospital_liable_for_medical_ma.html

[5] http://www.ustransplant.org/

[6] http://kidney.niddk.nih.gov/kudiseases/pubs/kustats/

[7] http://www.unos.org/

[8] http://en.wikipedia.org/wiki/Kidney_transplantation#Statistics

[9] http://www.msnbc.msn.com/id/44599555/ns/health-infectious_diseases/t/couple-sues-hospital-after-he-gets-her-infected-kidney/

[10] http://www.msnbc.msn.com/id/37624303/ns/health-infectious_diseases/t/infected-organs-pose-deadly-transplant-risk/

Background Sources
http://www.msnbc.msn.com/id/45310341/ns/health-health_care/t/probation-program-transplanted-infected-kidney/

http://www.ncbi.nlm.nih.gov/pubmed/18510639

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Social media is increasingly being used by businesses to build their brands and customer base. In particular, businesses are embracing sites such as Twitter to heighten awareness amongst their target markets. The latest estimates show that more than 175 million users are registered on Twitter and send 95 million Tweets on a daily basis. [1]

Businesses spend a lot of time and effort on developing customers and creating corresponding customer lists. In the digital era, this translates on Twitter to followers. Whoever is in charge of the Twitter handle at a business creates a target list of influencers or prospects that it wants to convert into clients. As followers increase, the person’s tweets, even when conversational or personal, become part of the company’s public relations. As the Twitter account becomes more popular, other Twitter feeds can list it too. The business’ Twitter feed then becomes more valuable and influential as a key part of business development. What starts out as a casual interaction on Twitter leads more people to visit a business’ website and offline products, use their services, and partner on unique business transactions.

A current lawsuit in the California courts shows how one business is grappling with a coveted Twitter account that one of its ex-employees took with him when he left the company. The lawsuit has big implications nationwide for business use of social media and employment contracts as businesses try to keep trade secrets, including customer lists, away from competitors.
In PhoneDog v. Noah Kravitz, PhoneDog sued Noah Kravitz, a writer for its mobile reviews and news after he left the company and took his 17,000 Twitter followers with him. [2] Kravitz alleges that PhoneDog let him keep his Twitter account if he would post Tweets occasionally as he left on good terms. [3] His account while at the company was Phonedog_Noah and post employment he changed it to NoahKravitz. Eight months after Kravitz left, PhoneDog asserts that Kravitz took all the followers with him when he changed his account and this customer list is vital to doing business. PhoneDog is seeking $2.50 a month per client in damages, or $340,000 for the eight month time span.

Kravitz sought to have the lawsuit dismissed as he stated that the case lacks subject matter jurisdiction. Last November the United States District Court, N. D. California, ruled against Kravitz on this matter, and said that PhoneDog can file an amended complaint in regards to misappropriation of trade secrets. [4]

PhoneDog asserts that it has employees send out written content and videos via Twitter accounts. Twitter accounts help it generate more website traffic and thus increase the potential for mobile and other related companies to advertise on the website. The company says that all @PhoneDog_Name Twitter accounts accessed by employees, including account names, passwords, and followers are proprietary, confidential information. Kravitz says that since there was no employment agreement setting a rule for changing his Twitter handle, the company cannot seek damages from him.

“The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C,” they released in a comment to The New York Times. [5] “We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.”

The lawsuit highlights the debate at the center of social media use by businesses – who owns a Twitter account and its followers ultimately? To Kravitz, “…all Twitter accounts are the exclusive property of Twitter and its licensors, not PhoneDog” and his 17,000 followers “…are human beings who have the discretion to subscribe and/or unsubscribe to the Account without the consent of PhoneDog and are not property and cannot be owned.” [6] So does everything belong to Twitter or as PhoneDog asserts, to the company as it has a license granted by Twitter to access and use the @PhoneDog_Name accounts?

Also of contention is the value of a Twitter account and followers. Without an industry recognized standard of valuing followers, how can a value such as $2.50 a person be assessed? What would happen if a company kept its Twitter handle when a person left but the value of the content on the Tweets did not find much interest and followers greatly diminished with a new person at the controls?

The questions raised in this lawsuit are important as businesses use Twitter more and enlist high-profile guest reviewers and bloggers on sites to gain more business. Employers and their human resources and legal departments will need to update confidentiality, nondisclosure and non-compete agreements to address ownership of social media information that is operated on behalf of a company and on company time. With Rolodexes and old fashioned customer lists barely used in the workplace anymore, social media contacts for business and corresponding customer relationship management databases must be safeguarded. Restrictive covenants could have prevented much of PhoneDog’s complaints.

As with many employment agreements, an employer can lessen disputes by informing potential and current employees of expectations up front, remind them about ground rules in yearly meetings or quarterly emails, and update the rules as new forums for business development emerge. With Twitter, Facebook, LinkedIn, Google’s +1, and the dizzying array of social media that will undoubtedly take root in the years to come, employers must stay out front of these disputes.

Being specific and detailed in employment agreements and policies is key. Provisions should define what is confidential and a trade secret, bar personal use of business accounts, and establish what disciplinary actions could occur if coveted information was disclosed. [7] This should also include post-termination rules, such as unlinking customers to social media accounts, handing over logins and passwords, and prohibiting connecting to customers with a competitor for a set, reasonable amount of time.

How the California courts will interpret PhoneDog’s interpretation of what is a trade secret is still to be determined. Trade secret lawsuits must prove that a secret gives its business a competitive advantage and it has taken the steps to protect it. PhoneDog says that how Kravitz logged on was confidential company information. Many companies and employment and business attorneys are looking to this case for more guidance, and hoping that the case does not end in a mediocre, hushed way.

Sources
[1] http://blog.martindale.com/think-social-media-is-a-waste-of-time-your-competitors-dont

[2] http://scholar.google.com/scholar_case?case=9890904231170613660&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[3] http://www.nytimes.com/2011/12/26/technology/lawsuit-may-determine-who-owns-a-twitter-account.html

[4] http://scholar.google.com/scholar_case?case=9890904231170613660&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[5] http://www.nytimes.com/2011/12/26/technology/lawsuit-may-determine-who-owns-a-twitter-account.html

[6] http://scholar.google.com/scholar_case?case=9890904231170613660&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[7] http://socialmedialawnews.com/tag/social-media-policy/

Background
http://www.networkedlawyers.com/category/non-competes-and-anti-solicits/

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

We truly live in a global economy with electronic goods and services being traded back and forth all over the world. There seems to be no borders and no limits to what can and cannot be shipped anywhere until now. There is a quiet, yet predictive trend that is beginning to raise a red flag for companies that export and import globally. It seems foreign plaintiffs are filing lawsuits in U.S. courts under something referred to as the Alien Tort Statute. [1][2]

What do the lawsuits allege? They suggest that technology companies and their U.S. based management are violating international law by encouraging human rights abuses through the use of their various products and should be held accountable in the United States. [3][4]That is a significant allegation, and if found to be credible, will cause a major upheaval in the way business is done in the technology sector. It may also open the door to multimillion dollar settlements and awards, which is something that a fledgling technology company could not afford.

For now, there are not that many lawsuits. However, the dawning of this type of litigation is creating anxiety in the technology sector for financial and practical reasons. Many are wondering just what the Alien Tort Statute is and how it came to be in the first place. It was brought into law in 1789 and its intention was that it would be used as a weapon against piracy and insults to U.S. diplomats around the world.

While piracy still exists today but in a different manner, the statute may be adapted to cover software and technology piracy, including the theft of trade secrets, coveted technical inventions and gadgets that may garner the creator mega bucks. Even though this statute was passed into law in 1789, it is clear it has been enjoying a rebirth over the last three decades as it was not reactivated until the 1990s when it was used to target global corporations in the U.S. [5]

The specific wording the lawsuits rely on is “…district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (28 U.S.C. § 1350). [6]

The focus of the lawsuits is that the executives of a foreign company based in the U.S. are facilitating illegal, horrendous human rights abuses by virtue of the products they manufacture and sell. Any company slapped with this type of a lawsuit wishes they had never heard of or seen the statute as it takes years to litigate these types of cases.

Additionally, the media clings to this kind of story for the daily news. What more damage could possibly be done to a U.S. based company than to be sued and reviled in the news for alleged human rights abuses? And therein lies the dilemma. While the media report on alleged abuses, the public and consumers assume alleged means they did what they are accused of, when there is a possibility they did not.

Things may be taking a turn for the better. Consider the U.S. Supreme Court’s recent acquiescence to hear an appeal on Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). [7][8] The specific issue they plan to address is whether or not corporate defendants can indeed face liability under the Alien Tort Statute. Should the Court’s decision be for the corporation, it would end the use of the statute as leverage against corporations accused of human rights violations. While that may sound like a blessing, it may not be the end of the issue.

The next issue to surface is more than likely to be a shift in focus from suing a corporation to suing a specific person. Just as one issue may be resolved legally by the Supreme Court, others may well take its place as they eventually wind their way through lower courts.

It is not just the technology sector that has faced this kind of lawsuit. It seems filing an ATS lawsuit is industry neutral and may include defendants in various industries from industrial and chemical sectors to finance, manufacturing, and technology. None of the plaintiffs appear to be shy about alleging torture, medical experiments on humans, crimes against humanity, inhumane working conditions, human trafficking and environmental pollution. In other words, a veritable potpourri of offenses may find their way into an ATS complaint.

Lately, more technology companies have been the target of these lawsuits, with the first of many suits filed in 2002. Plaintiffs in one suit pointed a finger at Fujitsu and IBM for allegedly assisting the South African apartheid policy by providing them technology that monitored the people. That case is still in the courts, but it is worth reading to get a sense of where the courts may be going, with regard to the law. [9]

One case that many may recall, if not for the large headlines it generated, is the World Organization for Human Rights USA launching a lawsuit against Yahoo. That suit suggested that Yahoo violated international law by giving Chinese bureaucrats online user information, making it easier to find and arrest political naysayers. [10]

It was quite the battle, with Yahoo peppering the court with creative arguments that were phrased in circuitous language that began with words to the effect of “even if Yahoo did surrender information,” the “dissidents” willingly took the risk of being found by going online to promote their views. Yahoo was on the hot seat for a number of months, and even endured questioning by the U.S. House Committee on Foreign Affairs. Yahoo did eventually settle the case.

Of interest is a case waiting to hear what the Supreme Court says in Kiobel, Doe v. Cisco Systems, Inc., (ND CA, filed 5/19/2011). [11] This case alleges Cisco Systems and some of its executive cadre helped China violate human rights by developing a program called Golden Shield. Golden Shield was allegedly designed to act as a surveillance and censorship program for tracking members who practice Falun Gong.

As things stand right now, the Supreme Court has not made a determination if corporations may be held liable under the ATS. The statute does not specify who may be sued, and so far, the answer to that question is not getting any clearer either to lawyers or the courts. [12][13]

Sources
[1] http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202536487253&From_the_Experts_Recent_Developments_in_Alien_Tort_Statute_Litigation

[2] http://www.princeton.edu/~slaughtr/Articles/AlienTort.pdf

[3] Id.

[4] http://www.uchastings.edu/faculty-administration/faculty/dodge/class-website/docs/publications/ats-origins.pdf

[5] http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202536487253&From_the_Experts_Recent_Developments_in_Alien_Tort_Statute_Litigation

[6] http://codes.lp.findlaw.com/uscode/28/IV/85/1350

[7] http://online.wsj.com/public/resources/documents/091710atsruling.pdf

[8] http://www.csrandthelaw.com/2011/02/articles/litigation/alien-tort-statute/alien-tort-statute-update-second-circuit-denies-petition-for-rehearing-en-banc-in-kiobel-v-royal-dutch-petroleum/

[9] http://axisoflogic.com/artman/publish/Article_55422.shtml

[10] http://www.humanrightsusa.org/index.php?option=com_content&task=view&id=53&Itemid=38

[11] http://religionclause.blogspot.com/2011/05/falun-gong-class-action-claims-cisco.html

[12] http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202536487253&From_the_Experts_Recent_Developments_in_Alien_Tort_Statute_Litigation

[13] http://supreme.justia.com/us/542/692/case.html

Background Sources
Doe v. Cisco Systems, Inc., (ND CA, filed 5/19/2011)

http://en.wikipedia.org/wiki/Alien_Tort_Statute

http://harvardhumanrights.wordpress.com/criminal-justice-in-latin-america/alien-tort-statute/

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

The Supreme Court stepped into a partisan political battle on Monday that stems from three new Texas redistricting plans drawn up last summer. With the 2012 primary season heating up, the Court’s decision has the potential to affect local and national election outcomes.

Currently, voting districts for the Texas Legislature and those for the Texas delegation to the U.S. House of Representatives are in limbo. Two sets of maps have been drawn, one by the Texas Legislature and one by a federal court in San Antonio, but no decision has been made about the legality of either redistricting plan.

Texas wants to use the maps drawn by its state Legislature, while opposition groups claim those maps unfairly discriminate against minority groups. The new maps, critics claim, would cause minorities, and Hispanics in particular, to be underrepresented at the state and national level. The Supreme Court must decide which, if either, of the redistricting plans should be used in part or in its entirety.

Depending on the outcome of the dispute, Texas could add to its already significant conservative delegation or it could see an increase in Democratic representation in Washington.

On the surface, the question is narrow, involving the fairness of Texas voting districts and the fate of competing sets of redistricting maps. But lurking in the background are constitutional questions about the extent to which the federal government may play a role in the state election processes.

The controversy arises in part due to the interaction between Sections 2 and 5 of the 1965 Voting Rights Act. Section 2 prohibits electoral practices that discriminate against minority groups. [1] It applies to all states. Section 5 applies only to a handful of states and municipalities, mostly in the south, that have historically discriminated against minorities. It requires any changes to voting procedure, including redistricting, be approved before being legally implemented. This process, known as pre-clearance, can be accomplished through administrative review by the Justice Department or trial before the United States District Court for the District of Columbia. [2]

Texas is required to comply with Section 5. And redistricting maps, drawn as a result of the 2010 census, have pushed the state’s grievances into the national spotlight.

Between 2000 and 2010, Texas experienced the highest population growth of any state, at approximately 20 percent. [3] As a result, Texas received four additional seats in the U.S. House of Representatives. Texas needed to reapportion its voting districts for its state House, state Senate and the Texas delegation to the U.S. House of Representatives.

The Texas Legislature got to work redrawing districts in the summer of 2011. On July 19, Texas filed a request with the U.S. District Court for pre-clearance. Texas Attorney General Greg Abbott asked for summary judgment, or a ruling without a full trial. [4] The new maps would need to be approved before they could be used in the 2012 elections.

While the plans were under review for pre-clearance, six suits were filed in federal court contesting the legality of the new maps. The suits claim the new districts unfairly affect minorities, denying them the equal protection guaranteed by Section 2 of the Voting Rights Act. According to critics, the redistricting plans are a thinly veiled exercise in political gerrymandering designed to benefit conservatives in a state already run by majority Republican representation. A three judge panel was convened in San Antonio to hear arguments concerning the fairness of the new districts.

The San Antonio court faced an interesting dilemma; it was being asked to judge redistricting plans that were simultaneously under review for compliance with a different section of the Voting Rights Act by a different court. The judges refused to rule on the legality of the maps while they were under review, claiming they have no authority to do so. [5] Some of the suits have been tried and others postponed, but the court has not issued a final ruling in any of the cases.

In early November, with cases still pending in San Antonio, the D.C. federal court ruled that the Texas maps did not adequately protect minority voting rights. The court determined that the maps were “…adopted with discriminatory purpose,” and stated, “The Court finds and concludes that the State of Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice.” [6]

In response, the three judge panel in San Antonio drew new voter districts for interim use while the D.C. federal court holds a full trial on the issue.

Minority population increases accounted for almost 90 percent of Texas’s overall growth between 2000 and 2010. Hispanics led the way, adding approximately 2.8 million people to the state’s citizenry. [7] But the maps drawn by the Texas Legislature decreased the number of state House districts in which minorities had a likelihood of electing their preferred representative from 50 to 45. [8]

The San Antonio federal court made broad changes to the maps, redrawing the lines for 128 of the 150 state House seats and all 36 of the U.S. House Districts. [9] Critics of the interim maps complain that the court ignored the Texas Legislature’s plans and relied almost entirely on opposition complaints to form the new districts. Texas asked the court to place the interim maps on hold, and the court refused. Texas, believing the San Antonio court had overstepped its authority in drawing the new maps, appealed to the Supreme Court. The Court halted the implementation of the interim maps and agreed to hear the case on an expedited schedule.

Criticism of the competing maps fell along predictable partisan lines. Democratic State Representative Trey Martinez Fischer said that the maps drawn by the Legislature failed to take minorities into account. “We picked up four seats, and it’s important to look at the people who contributed to that,” he said. “It just seems very suspicious that the state of Texas is willing to accept that growth for political power in Congress but overlook those who brought them to the dance.” [10] Fischer belongs to a coalition challenging the Texas Legislature’s maps in court.

But Republican Representative Pete Sessions of Dallas was equally critical of the court’s plan. Sessions accused the judges of trying to “…run up the score for Democrats.” [11]

Because of the manner in which the case reached the Supreme Court, there is some speculation over how broadly the Court will choose to rule. During a standard appeals process, the questions before the Court must be clearly outlined by petitioners and respondents. However, Texas’ case found its way to the Supreme Court as a stay application, which requires no specific statement of issues. Even if the Court chooses to rule narrowly on the question of which maps to uphold, constitutional questions about the validity of Section 5 will be looming in the background.

Section 5 was not intended to be a permanent measure, but it has been renewed consistently over the past several decades. Most recently, in 2006, Congress overwhelmingly extended Section 5 for another 25 years with a vote of 98-0 in the Senate and 390-33 in the House. [12]

In original filings, Texas was clear that it was not challenging the constitutionality of Section 5. Texas asked for relief from what it views to be invalid redistricting maps, “…under the assumption that Section 5 complies with the United States Constitution.” Texas argued the only real issue was whether its own redistricting maps should be put in place, as drawn, for use in the 2012 election. [13]

In a new brief filed last Tuesday, Texas’ position on Section 5 is less clear. While still avoiding a direct challenge to Section 5, the brief cites “grave” concerns over its constitutionality. The brief also makes several additional references to Northwest Austin Municipal Utility District No. 1 v. Holder, a 2009 case in which the Supreme Court expressed serious reservations about the continued relevance of Section 5. [14]

States covered by Section 5 are becoming more impatient about meeting the requirement, questioning whether the law is an unconstitutional violation of state sovereignty. Voters in Kingston, North Carolina have brought a suit challenging the constitutionality of Section 5 as has the state of Arizona. [15]

Arguments in another case involving a Section 5 challenge, Shelby County, Alabama v. Holder, are scheduled to be heard by the U.S. Court of Appeals for the District of Columbia on January 19. [16] In September of 2011, at the district level, Judge John D. Bates, unquestioningly upheld the validity of Section 5. Judge Bates found the state sovereignty concern invalid, stating, “Congress acts at the pinnacle of its enforcement authority when it legislates to protect a fundamental right, or when it legislates to prohibit discrimination against a suspect class.” [17] It was the first ruling concerning Section 5 since the Supreme Court’s decision in Northwest Austin.

Given the uptick in recent Section 5 litigation, it is possible the Court is using Texas’ problem to set itself up for a future ruling on the law’s constitutionality. A decision modifying or declaring Section 5 invalid would have effects beyond future voting districts. Currently covered changes also include voter eligibility requirements, like voter identification laws, modifications to polling locations, candidate eligibility requirements and a host of other practices with potential discriminatory effect.

During arguments, conservative-leaning justices indicated a preference for implementing new voting districts based largely on the designs of Texas’ Republican controlled state Legislature, but still grappled with questions over how to do so. Justices Antonin Scalia and Samuel Alito, Jr. both suggested the three judge panel should have given more weight to the work of the Texas Legislature. Justice Scalia left little question to his preference, saying, “I suggest in that situation there is nothing to do but use the Texas plan.” [18] Scalia also took a swipe at Section 5, saying it was not an absolute rule forbidding Texas from using their own maps as an interim solution.

But Justice Alito was less clear, suggesting that Texas might need to further delay its primary election in order to get the redistricting dispute resolved. Alito asked, “Well, if we have a binary choice, if it’s either the plan enacted by the Texas Legislature or the plan that’s already been drawn up by the court, yes, that could be presumably resolved rather quickly. But what if neither of those is fully acceptable? Then is it — is it practicable to have the primary on the date that’s been agreed on?” [19]

Chief Justice John Roberts also indicated there was no clear choice to be made, saying, “…you have two wrong choices. How do we end up?” [20]

Only Justice Scalia’s claims that Section 5 is not an absolute rule went so far as to openly suggest changes should be made to the current legal understanding of the law. However, Justice Kennedy, the perennial swing vote, did offer a critique. Kennedy said, “Isn’t it odd that this is a Section 2 suit but Section 5 seems to be driving it? Texas is at a tremendous disadvantage here!” [21]

A decision must be reached by February 1 in order for Texas primaries to be held on April 3 as scheduled, and all of the Justices seemed troubled by the tight schedule. Barring any other changes to Texas’ election schedule, the indecision of the justices on the primary question before them may prevent the Court from issuing a ruling that addresses Section 5 at all.

The case is a consolidation of three suits, Perry v. Perez, Perry v. Davis and Perry v. Perez, docket No. 11-713, 11-714, and 11-715.

Sources
[1] http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php

[2] http://www.justice.gov/crt/about/vot/sec_5/about.php

[3] http://www.texastribune.org/texas-counties-and-demographics/census/for-texas-a-larger-footprint-in-congress/

[4] http://www.brennancenter.org/content/resource/supreme_court_preview_future_of_the_voting_rights_act/

[5] http://www.scotusblog.com/2012/01/argument-preview-texas-the-courts-and-voting/

[6] http://www.cbsnews.com/8301-503544_162-57320890-503544/judges-order-texas-court-to-redraw-electoral-maps/

[7] http://www.nationaljournal.com/census-shows-minorities-outnumber-whites-in-texas-20110217

[8] http://www.abajournal.com/news/article/chemerinsky_the_eyes_of_texas_are_upon_supreme_court/

[9] http://www.scotusblog.com/2012/01/argument-preview-texas-the-courts-and-voting/

[10] http://www.usatoday.com/news/washington/story/2012-01-05/supreme-court-texas-redistricting/52397486/1

[11] http://www.mysanantonio.com/news/local_news/article/Texas-redistricting-clash-is-back-in-a-familiar-2448736.php#page-1

[12] http://blog.chron.com/texaspolitics/2012/01/legal-expert-precedent-should-guide-supreme-court-on-texas-redistricting/

[13] Brief for Rick Perry et al., online at http://sblog.s3.amazonaws.com/wp-content/uploads/2011/12/Texas-merits-brief-12-21-11.pdf

[14] http://www.scotusblog.com/2012/01/is-section-5-on-the-line-right-now/

[15] http://txredistricting.org/post/14467303113/backgrounder-other-challenges-to-the-constitutionality

[16] http://www.cadc.uscourts.gov/internet/sixtyday.nsf/fullcalendar?OpenView&count=1000

[17] http://theusconstitution.org/blog.history/?p=3160

[18] http://www.texastribune.org/texas-redistricting/redistricting/quotes-redistricting-arguments/

[19] Id.

[20] http://www.rollcall.com/news/high_profile_texas_redistricting_case_hits_supreme_court-211410-1.html

[21] http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2012/01/the_u_s_supreme_court_tries_to_solve_a_looming_texas_redistricting_crisis_.2.html

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

For the past decade, the political issue of same-sex marriage has played out like a tug of war in state legislatures across the country as weddings are legalized, then banned or rejected, then celebrated.

At the beginning of 2012, there are 29 states with constitutional bans on same-sex marriage and there are at least two more states with voter referendums scheduled during the year. Six states plus Washington, D.C., issue marriage licenses to same-sex couples including New York, which changed its law in 2011. [1]

Maine could be the first state to legalize same-sex marriage by ballot this year, but the state’s history with the issue has been as rocky and twisting as its shoreline. In the summer of 2009, the Legislature and the Democratic Gov. John Baldacci approved a measure making same-sex marriage legal. Opposition groups got the issue placed on the ballot during a wave of backlash against the Obama administration’s health care reform proposals and the people voted to overturn the law. [2]

There is a campaign afoot to legalize same-sex marriage in all six New England states before the end of the year. Massachusetts, Vermont, New Hampshire and Connecticut are already on board. If Maine reverses course again this fall in the referendum, then Rhode Island will be the only state in the region where same-sex couples will not be allowed to formally marry. Rhode Island passed a civil union option last year, but many advocates say civil unions are an insult and a relic of inequality.

Marriage Equality Rhode Island, a group advocating for a change in the state’s law, is not satisfied with the incremental step of civil unions. “You’re never going to see us trumpet civil unions,” MERI’s campaign director Ray Sullivan told the New York Times. “We believe civil unions establish a second-class citizenry.” [3]

While New England remains the nucleus for changes that legalize same-sex marriage, other parts of the country are considering ballot initiatives that would do the opposite.

North Carolina, an island among states that changed their state constitutions to ban same-sex marriage in the middle of the last decade, has a referendum coming up in May.

The state’s Republican-led Legislature fast-tracked the legislation with no public comment and placed the measure on the statewide ballot during the Republican presidential primary election this spring. That election will naturally draw higher numbers of conservative voters since there are no statewide Democratic candidates on the ballot, according to the National Journal. [4] Additionally, at least two Democratic Congressmen were given more conservative constituents during the redistricting process and Republicans lining up to unseat them may face off in the May 8 primary with the marriage amendment option on the ballot.

North Carolina’s neighboring states of Virginia, Tennessee, Georgia and South Carolina all have banned same-sex marriage in their state constitutions.

When neighboring states grant marriage licenses to same-sex couples, it can put some economic pressure on a state to do the same so that it does not lose the people and potentially the business that comes with the wedding industry. Proponents of same-sex marriage in Rhode Island have made this argument among others as they watch locals go to Massachusetts or Connecticut to get married.

Minnesota borders perhaps the most surprising state where same-sex marriages are legal – Iowa. Minnesotans face a big vote on the issue in the November general election.

The Minnesota Legislature decided to let the people vote to amend the state’s constitution such that marriage is defined as one man and one woman. The vote in May was largely along party lines with Republicans voting for the amendment to be voted on by the people and the Democrats voting against an amendment. [5]

The Republican Party of Minnesota was beset with a sexual scandal in the fall that will not help its moral argument for a constitutional amendment. State Senate Majority Leader Amy Koch resigned her leadership role after party leaders raised questions about her inappropriate relationship with an aide. Gov. Mark Dayton, a Democrat, called Koch a hypocrite on Minnesota Public Radio News. “If it’s befitting for somebody whose own conduct doesn’t measure up to what they’re professing to believe in, or prescribing for others, then they should be called on that.” [6]

In many states like Minnesota and North Carolina, the state already outlaws same-sex marriage, but supporters of a constitutional amendment say such an action will protect the laws from being overturned in the courts.

Gay rights groups in Oregon had spent several years campaigning for support of a state law change to allow same-sex marriages. The group had originally wanted to get the issue on the ballot for the 2012 election in November, but decided last fall to hold off because polling indicated they might not be successful, according to the Oregonian. [7] Oregon voters approved a constitutional ban on same-sex marriage in 2004.

Voters in North Carolina, Minnesota and possibly Maine will head to the polls this year to decide how their states will look at same-sex marriage. To date, voters have only ever turned down same-sex marriage rights when states have put the issue to a vote. States have voted against the issue 28 times – most notably in California where the people overturned a state Supreme Court ruling that made same-sex marriage legal.

Across the country, though, the general population’s opinion on the issue has hit a milestone, according to ABC News. For the first time in about a decade of annual polling, The Washington Post and ABC News found that more than half of Americans – about 53 percent – think gays and lesbians should be allowed to marry. The issue is still polarizing, according to the polling, as there has been little shift among those who feel strongly for and strongly against the issue. Those in the middle are shifting the most with Catholics, men and people in their 30s and 40s showing the largest percentage change in attitude. [8]

The polling shows a considerable change in opinions about same-sex marriage since the mid-2000s, which is when many states held referendums that changed their constitutions. At the federal level, President Obama led the U.S. Armed Forces to abandon its Don’t Ask Don’t Tell policy on gays and lesbians in the military and instructed the Justice Department to stop defending 1996’s Defense of Marriage Act. [9]

Sources
[1] http://topics.nytimes.com/top/reference/timestopics/subjects/s/same_sex_marriage/index.html

[2] http://abcnews.go.com/Politics/maine-gay-marriage-law-repealed/story?id=8992720#.TvoaSc3q78U

[3] http://www.nytimes.com/2011/06/30/us/30unions.html

[4] http://hotlineoncall.nationaljournal.com/archives/2011/09/nc-to-vote-on-s.php

[5] http://www.startribune.com/politics/statelocal/122401039.html

[6] http://minnesota.publicradio.org/display/web/2011/12/23/marriage-amendment-hypocrisy-dayton/

[7] http://www.oregonlive.com/politics/index.ssf/2011/11/basic_rights_oregon_will_not_p.html

[8] http://abcnews.go.com/Politics/support-gay-marriage-reaches-milestone-half-americans-support/story?id=13159608#.Tvt9qc3q78U

[9] http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

For more than two decades the power plant industry was able to evade parts of the Clean Air Act that Congress had passed. Because of this, families living near power plants were still harmed by toxic pollutants in the air. Environmental advocates also fought to implement stricter regulations for mercury, toxins, and other pollutants that many of America’s power plants still emitted. Environmental lawsuits and toxic tort cases have involved the Environmental Protections Agency (EPA) for its ineffective regulations and many power plants for compromising individuals’ health. But in mid December, the regulatory landscape changed after the EPA finalized the national Clean Air Act in regards to reducing mercury and toxic air pollution that coal and oil-fired power plants emit.

The Mercury and Air Toxics Standards (MATS) establishes a final rule that mandates that power plants reduce mercury from being released into the air by 90 percent, acid gas emissions reduced by 88 percent, and sulfur dioxide emissions cut by 41 percent. This is beyond the decreases already proposed in the Cross State Air Pollution Rule. [1] A Presidential Memorandum backs up MATS and directs the EPA to use the tools in the Clean Air Act to implement emission controls.

The finalization “…from President Obama and EPA Administrator Lisa Jackson marks a milestone for parents and families across the country. It means that, after decades of delay, we now have strong nationwide protections against toxic mercury, and most of all, it means peace of mind for the parents of more than 300,000 American babies born every year that have been exposed to dangerous levels of mercury,” the Sierra Club commented in a recent press release [2].

Across the United States, there are 600 power plants and approximately 1,400 oil and coal fired electric generating units (EGUs). The EPA states that power plants are the main mercury, acid gas, and toxic metal polluters in the United States. [3] Populations living close to power plants, and, in particular, children have been affected by power plant pollutants. Health issues such as cancer, respiratory illness, and neuro-developmental problems have harmed individuals living near the power plants. And even fish that have been contaminated with mercury runoff can affect individuals thousands of miles away who eat this food source.

“These standards for mercury and other air toxics will help to reduce mercury emissions from power plants and help children across the country avoid preventable birth defects and learning delays and have a brighter, healthier, more productive future. Finally, putting people over politics,” said Adrianna Quintero, Director of Voces Verdes, La Onda Verde de Natural Resources Defense Council. [4]

Before MATS was in place, 48 tons of mercury pollution was pumped into the air each year and also affected U.S. waterways and the fish that thrived there. Why fish become such an important part of the story is this – inorganic mercury seeps into the water and bacteria convert it to methylmercury, which can then accumulate in living tissue. As fish age, the more mercury will be present in its meat. When humans eat fish, they then accumulate mercury in their tissues and hair samples can show elevated concentrations. Testing has shown that 40 percent of human mercury exposure is due to eating Pacific tuna. [5] For sushi lovers or those that eat fish out of preference or to maintain a budget, it can be daunting to know what to eat. The Sierra Club has created a chart for easy reference to make smarter eating decisions. [6]

Put in perspective, 48 tons of mercury could contaminate a 20-acre lake. [7] For those that are experiencing illnesses that are not easily explainable and perplexing doctors, mercury toxicity is noted for causing concentration problems, tremors, balance and coordination concerns, slurred speech, motor skill loss and muscle weakness, decrease in memory, insomnia, loss of vision, hearing, and hair, and long-term damage that can only sometimes be reversed. But for expecting mothers and their newborns, the dangers are even more severe.

More than 300,000 babies have been born each year with dangerous levels of mercury inside the womb. Power plant pollutants can damage a newborn’s developing nervous system and cause cerebral palsy, brain damage, and delayed speech and motor skill development. [8] These pollutants were scientifically proven to cause premature death, hospital visits, and many days of lost work.

With the new MATS, EGUs that are larger than 25 megawatts and generate electricity for residential, industrial, or commercial use will have to comply with these modern pollution controls. [9] For power plants that do not already have adequate pollution control, they will have to utilize wet and dry scrubbers, fabric filters, activated carbon injection systems, or dry sorbent infection systems to comply with the new emission rules. EPA advocates making upgrades to existing pollution controls, installing new ones, or switching fuels to lesson emissions.

Power plants will have until 2016 to get their facilities compliant with MATS. For environmental advocates this is long overdue as many power plants are more than 30-years-old, with some even over the 50-year-old mark. The EPA estimates that for every dollar spent, $3 to $9 of health benefits will be created. [10] EPA’s analysis shows that power plants should be able to retrofit or build these pollution controls in a cost effective way that also ensures electric reliability. After plants have these measures in place, EPA will conduct annual performance tests and inspections. With MATS, airborne soot levels should also decrease.

As the MATS rule takes effect, the EPA estimates that 540,000 sick days from work will be avoided. Air quality improvement and human health costs will improve by a minimum of $37 billion, the agency predicts. [11] Premature deaths will decrease by a minimum of 18,000, emergency room visits will lessen by 13,000, and 540,000 asthma attacks due to power plant pollution will not occur.

“The overall cost of the regulations is expected to reach $10 billion a year, with homeowners paying perhaps three percent more on their electricity bills,” noted a Los Angeles Times editorial. [12] “But it’s not as though the country hasn’t been paying that and more over the years; the price of high pollution levels has simply been pushed into the health sector in the form of higher rates of illness.”

Sources
[1] http://www.epa.gov/mats/pdfs/20111221MATSimpactsfs.pdf

[2] http://action.sierraclub.org/site/MessageViewer?em_id=223181.0&dlv_id=0

[3] http://www.epa.gov/mats/pdfs/20111221MATSimpactsfs.pdf

[4] http://www.huffingtonpost.com/adrianna-quintero/a-long-awaited-victory-fo_b_1163581.html?ref=green

[5] http://www.sierraclub.org/sierra/201111/mercury.aspx

[6] http://www.sierraclub.org/sierra/201111/Whatfish_graphic.pdf

[7] http://www.huffingtonpost.com/adrianna-quintero/a-long-awaited-victory-fo_b_1163581.html?ref=green

[8] http://www.sierraclub.org/sierra/201111/mercury.aspx

[9] http://www.epa.gov/mats/pdfs/20111221MATSsummaryfs.pdf

[10] http://www.epa.gov/mats/pdfs/20111221MATSimpactsfs.pdf

[11] Id.

[12] http://articles.latimes.com/2011/dec/23/opinion/la-ed-adv-mercury-20111223

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

When someone has been in an accident, serious enough to be taken to the nearest medical facility, one would expect the attending ER doctor to deal with the manner expeditiously, professionally and accurately. That did not happen in this disturbing $9 million medical malpractice case. [1] [2] [3] What happened next was unbelievable.

This reported case took place in Cheyenne, Wyo., and resulted in one of the highest medical malpractice verdicts ever seen in the state. The existing record until this case was $1.5 million. [4] The verdict was for the plaintiffs. The jury found that the board certified emergency physician, working for the regional hospital where plaintiff Louis Prager was not treated properly, had egregiously and negligently breached the accepted standards of medical care.

Defendant Doctor Cullison failed to diagnose 51-year-old Louis Prager’s broken neck, which ultimately resulted in him not being able to work, caused permanent left shoulder paralysis and excruciating, debilitating, ongoing pain. The man’s whole life had been turned inside out by the medical mistreatment he received in the hospital. While the jury deliberated, they also concluded that the hospital and the doctor had seriously harmed Prager’s 30-year marriage, and awarded loss of consortium damages to the wife.

What happened to start this cascading chain of devastation? In December 2008, Prager was working in the oil fields, and was involved in a truck rollover accident. His truck slid off an icy road and rolled several times landing upside down. [5] EMS crews rushed to the scene, immobilized him using a backboard and put on a neck brace. These were all correct procedures for rollover accidents, and protected the neck and prevented any further damages. He arrived at the hospital with the neck brace in place and was seen by Dr. Cullison who released him from the ER without taking x-rays of the man’s neck or doing any type of physical exam.

This oversight was considered to be strange by the jury, as Prager quite clearly stated that his neck hurt and that he was in pain. The doctor did order x-rays of Prager’s head and back, but not his neck. However, he thought his neck had been done while the other x-rays were being taken or while he had been in the CT machine. They were not. To compound this evident lack of medical care, the doctor further assured Prager that he had no broken bones and that things appeared to be just fine.

They were hardly fine, as Prager had to go back to the hospital several days later and was then diagnosed with numerous cervical spine fractures, a paralyzed left arm and shoulder, and needed emergency neck fusion surgery. The final diagnosis of this set of medical events was that Prager now had permanent C5 nerve root damage, and is mostly confined to his house due to pain and disability. While the first surgery stopped further injury, it could not undo his nerve damage. [6]

The first neck fusion surgery was not the only one. He had to have a second operation (neck fusion) and faces additional surgeries in the future, including the implantation of a spinal cord stimulator with the aim of decreasing his unbearable pain levels. Prager’s injuries permanently altered the remainder of his life and the remaining years in his marriage. In other words, his injuries are classified as catastrophic.

Catastrophic injuries change an individual’s life, and quite often are the result of a sudden accident. These injuries have long-term consequences, some of which do not show up until later in life. The injuries are often permanent, with no hope of ever being in the condition they were in prior to their accident. Most victims with catastrophic injuries are not able to work again, and thus the only way they are able to care for themselves is to file a personal injury lawsuit to recover damages. [7]

It is common to expect that catastrophic injuries end up damaging the central nervous system, which then affects other organs and body systems. Spinal cord injuries, such as the one in this case, are very complex and victims most likely will need long-term medical care. They do not just deal with physical pain; they also face emotional and financial challenges on a daily basis that impact their wellbeing.

At trial, the defense denied that the doctor failed to do a physical exam of Prager’s neck and also said that people involved in a rollover should have neck x-rays. This was a clear denial from the defense, as the plaintiff could clearly recall whether or not he had a physical exam on the day of his accident. Despite being in shock, some things are remembered with startling clarity when one is in pain.

Additionally, the contention that it is not necessary to give a rollover victim a neck x-ray just defies conventional medical wisdom. The jury evidently felt the same way, or they would not have awarded the plaintiff $9 million; $7 million for the negligence of the hospital and the doctor and $2 million for loss of consortium.

Of note in this case is the interesting twist that developed at trial. The defendant’s own medical expert witness indicated that if Cullison had taken the time to do a physical exam of the plaintiff’s neck, the man’s spinal nerves would have made an examination difficult. It is rather counterintuitive to have a medical expert testify for the defense, and inadvertently help the plaintiff’s arguments.

Individuals place an enormous amount of faith and trust in doctors, especially when going to the hospital for emergency medical care. What a doctor says and does determines the outcome. If a doctor, or another medical professional does something wrong, or does not do something they should, the results can change a person’s life forever. Not for one minute should a doctor be allowed to get away with medical negligence. If that happens, it does not stop, and there will be other victims.

Sources
[1] http://www.marketwatch.com/story/metier-wins-9-million-verdict-in-medical-malpractice-suit-against-wyoming-regional-hospital-2011-11-04

[2] http://trib.com/news/state-and-regional/jury-returns-million-verdict-in-lawsuit-against-gillette-hospital/article_bf2bc563-ef43-5671-9266-117d150e2b06.html

[3] http://k2radio.com/9m-malpractice-award-thought-to-be-wyomings-largest/

[4] http://www.marketwatch.com/story/metier-wins-9-million-verdict-in-medical-malpractice-suit-against-wyoming-regional-hospital-2011-11-04

[5] http://trib.com/news/state-and-regional/jury-returns-million-verdict-in-lawsuit-against-gillette-hospital/article_bf2bc563-ef43-5671-9266-117d150e2b06.html

[6] Id.

[7] http://www.avvo.com/legal-guides/ugc/an-overview-of-catastrophic-injury-litigation

Background Sources
http://medicallicenseverification.com/tag/brian-cullison/

http://www.kgwn.tv/story/16027780/9m-malpractice-award-largest-in-wy-history

http://www.wyomingpublicmedia.org/post/cheyenne-jury-awards-record-medical-malpractice-award

http://www.court.us/wyoming/campbell.htm

http://www.news-medical.net/news/20111105/Metier-obtains-249-million-verdict-against-Campbell-County-Memorial-Hospital.aspx

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

With advances in science and technology, having a healthy baby is more of a possibility. Preimplantation genetic diagnosis, also known as PGD, is a welcome relief for a couple who wants to have a child but is concerned about passing on genetic disorders or chromosome abnormalities. With newer techniques of in vitro fertilization, PGD involves taking cells from the embryo to determine if there are any abnormalities so that the doctor will only implant healthy cells in the woman’s uterus.

PGD has also been utilized by some medical centers to determine the sex of the child, the possibility of the child being born deaf or small stature and tissue typing. [1] For family planning or health reasons, PGD is sought after by some couples for peace of mind. It comes at an expensive price tag in the $10,000 range on up for IVF and PGD, and insurance does not typically cover it. PGD testing has been in use since the early 1990s and analyzes polar bodies during the process of meiosis or single cells from embryos after fertilization. [2] The small amount of DNA is amplified and can detect hereditary cancer, genetic mutations, and Down syndrome, for example. It can also show clues that can help a patient decrease their risk of miscarriage. [3]

Sometimes testing is done for just one specific genetic abnormality. At other times, PGD testing is done to see if an embryo has too many or too few chromosomes, which is an aneuploidy screening. PGD testing for aneuploidy uses fluorescence in situ hybridization (FISH) where DNA is labeled with glowing molecules, known as fluorochromes, which attach to certain chromosomes. Technicians can then count chromosome copies to look for abnormalities. PGD testing can be done on embryos three to five days after fertilization and be implanted back in the woman within the next two days. [4]

Prenatal testing, in general, is such a big market that in 2010 it accounted for a $1.3 billion industry. [5] Currently, most of the PGD patients are women of older child-rearing ages. This will only increase as statistics show women are waiting longer to have a child. After women reach age 37, there is a tendency to have chromosomally abnormal eggs. [6] Other patients seek out PGD testing due to recurrent miscarriages, failed IVF attempts, or genetic disorders in their families. By going the extra lengths and costs for IVF and PGD, a couple can transfer chromosomally normal embryos and reduce their risk for birth defects and miscarriage.

But reducing risk does not mean eliminating all risk. Sometimes a strong embryo can be harmed during the embryo biopsy procedure, lessening the effectiveness of the procedure. At other times, PGD can give false results and differences in techniques from varying medical centers and technicians doing this type of testing can alter the outcome. False results occur on an estimated five to 15 percent of embryos, including ones that show they are truly normal but testing shows abnormal, and vice versa. [7] Sometimes an affected embryo is implanted instead of an unaffected embryo.

In these circumstances, wrongful birth lawsuits emerge as do issues of medical malpractice and professional negligence. Errors in the process or with staff are alleged to have caused improper PGD testing and led the couple to proceed with the pregnancy. For some, had it not been for the health care professional’s negligence, they would have never conceived the child. For the expense and time commitment involved, the couple would have continued to test for normal cells to be implanted. The matter then becomes who is liable for the failure to detect a genetic disorder, sex of the baby, or other priority of the couple that also paid big money to get a healthy child.

Notable cases since the 1990s with PGD involve babies born with disorders after a fertility center claimed an embryo was normal. The courts favor these matters as a wrongful conception issue. [8] As with other types of injury cases, a couple can seek compensation for the cost of the failed procedure, pregnancy costs, pain and suffering, lost wages, and loss of consortium.

In the Family Court Review Journal, a recent article about “When Parents Can Choose to Have the ‘Perfect’ Child: Why Fertility Clinics Should be Required to Report Preimplantation Genetic Diagnosis Data” urges policymakers to have more oversight of fertility clinics and regulate PGD practices. [9] Since the United States does not currently regulate PGD testing, some are concerned about clinics’ desires for profitability in contrast to downplaying risks and failure rates for this experimental testing. At a minimum, consent forms outlining the risks of PGD and disclosures about it being an experimental test should be more prominent as the quest for the perfect baby is sought by a couple.

“Other countries regulate assisted reproduction to protect the well-being of all participants, including the children whom it helps create and the families and society into which they are born,” said Marcy Darnovsky, the associate executive director of the Center for Genetics and Society. [10] “Drawing lessons from their successes could help temper the commercial pressures in the U.S. assisted reproduction sector, without in any way diminishing reproductive rights.”

Others are apprehensive that as PGD becomes utilized more, it will lead to designer babies and a growing disparity between those that can afford to have perfect children and those who cannot. This, coupled with self regulation, can lead to unintended consequences that regulatory agencies and medical boards should be proactive about. Especially with varying levels of skill from clinic to clinic and technician proficiency, even in the same clinic, more oversight is needed to ensure that patient safety and medical standards are being upheld.

Darnovsky warns that prenatal genetic testing “…could radically alter the experience of pregnancy and parenting…and we’d better start thinking about it now – before hype, fear, and the polarized politics of abortion distort the discussion.” [11] The American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists provides fertility professionals with best practices for PGD. But guidelines are not enough; oversight by qualified regulatory groups would be better for patient safety.

Sources

[1] http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1319&context=wmjowl&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fhl%3Den%26q%3DPGD%2Btesting%26as_sdt%3D2%252C10%26as_ylo%3D2011%26as_vis%3D0#search=%22PGD%20testing%22

[2] http://pgdtesting.net/

[3] http://www.ivf1.com/pgd/

[4] http://www.advancedfertility.com/preimplantation_genetic_diagnosis.htm

[5] http://www.liebertonline.com/doi/abs/10.1089/gen.31.18.03

[6] http://www.advancedfertility.com/preimplantation_genetic_diagnosis.htm

[7] Id.

[8] http://www.dnapolicy.org/resources/Overviewofcourtdecisions_Crockin.pdf

[9] http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1617.2011.01418.x/abstract

[10] http://scienceprogress.org/2009/05/baby-business-and-public-policy/

[11] http://www.geneticsandsociety.org/article.php?id=5957

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.