The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is a look at Philadelphia jury verdicts in 2011, which dropped 31 percent on average. As reporter Amaris Elliott-Engel writes, the average civil jury verdict in Philadelphia Common Pleas Court fell from $1.49 million in 2010 to $1.02 million last year, according to First Judicial District statistics.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that antitrust and monopoly claims have been narrowed in a suit filed nearly 10 years ago against Comcast, allowing the allegations to proceed, according to a federal judge’s ruling last week.

Also below the fold on Page 1, Amaris Elliott-Engel writes that Dow Chemical Co. was denied in its effort to block a plaintiff’s subpoena in a brain cancer case. The state Supreme Court ruled to allow the subpoena, which would allow plaintiffs counsel to explore whether Dow and its predecessor, Union Carbide, failed to report the existence of employees with brain cancer who worked in their plants producing the toxic chemical vinyl chloride.

In more Regional News on Page 3, Saranac Hale Spencer writes that a federal statute trumps state jurisdiction in a bank fees case, according to a federal judge’s ruling last week.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a White-Collar Law column on Page 5, Peter D. Hardy and Abraham Rein write that changes may be coming to corporations’ federal sentencing.

In a Litigation column on Page 7, Abraham J. Gafni writes about pretrial discovery from non-parties in arbitration under state law.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story on this Monday morning is attorney Jeffrey Abramowitz, who was sentenced Friday to 60 months in prison for embezzling more than $1 million from family and clients and, to the surprise of many, left the courtroom in handcuffs and was taken immediately into custody. As reporter Gina Passarella writes, the victims of the 48-year-old’s embezzlement included his sister and sister-in-law.

Also above the fold on Page 1, reporter Zack Needles writes that Buchanan Ingersoll & Rooney Chairman Thomas L. VanKirk has left the firm to become executive president and chief legal officer at Pittsburgh’s largest health insurer, Highmark Inc.

Below the fold on Page 1, reporter Amaris Elliott-Engel writes that parties to the First Judicial District’s legal malpractice lawsuit against its former attorney in the Philadelphia family courthouse deal, Jeffrey B. Rotwitt, have agreed that a subpoena can be served on the consulting firm that reviewed the controversial deal, Chadwick Associates.

In more Regional News on Page 3, Zack Needles writes that two police officers injured after falling 30 feet down an open freight elevator shaftway have settled for $4 million. The officers had been investigating the premises of a Bucks County winery when their injuries occurred, and they settled with both the winery’s owners and the company that modified the elevator.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In an Antitrust Law column on Page 5, Steven E. Bizar and Landon Y. Jones write about confusion regarding the 3rd U.S. Circuit Court of Appeals’ recent decision in Sullivan v. DB Investments Inc.

In a commentary on Page 7, Wesley R. Payne writes that voter identification laws are the 21st century version of the poll tax.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is reporter Ben Present’s preview of the state Supreme Court hearing oral arguments this week in Philadelphia. Among the cases to be heard during the two-day session beginning Tuesday are several important workers’ compensation cases and one relating to MySpace and its use for communication between a man under house arrest and gang members with whom he was instructed to avoid communication.

Below the fold on Page 1, reporter Zack Needles writes that a federal judge has ruled that the language in an underinsured motorist coverage waiver may not be altered. The judge ruled that the existence of a single additional word in an underinsured motorist coverage waiver violated the Pennsylvania Motor Vehicle Financial Responsibility Law and rendered the waiver void in an Eastern District of Pennsylvania case involving defendant Travelers Indemnity Co. of America.

In more Regional News on Page 3, Dan McCormick writes about a legal clinic, La Comunidad Hispana, that is serving Chester County’s immigrant population.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In an Antitrust Law column on Page 5, Carl W. Hittinger and Patrick Castaneda write that the FTC has preserved the status quo in the long-term care pharmacy market following Omnicare Inc.’s eight-month pursuit of acquiring PharMerica Corp.

In a book review on Page 7, John J. Soroko writes about Judge Harvey Bartle III’s “Mortals With Tremendous Responsibilities” and what it says about the Eastern District’s role in the development of U.S. jurisprudence.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story today is the state Supreme Court issuing its decision in the redistricting case. As reporter Ben Present writes, the citizen challenge from petitioner Amanda E. Holt helped the Supreme Court determine, by a 4-3 majority, that the state Legislative Reapportionment Commission’s final House and Senate maps divided too many political subdivisions. The court did not, however, instruct the commission to adopt Holt’s plan, nor did it deliver any specific suggestions for how the commission should draw the new lines.

Above the fold on Page 1, reporter Amaris Elliott-Engel writes that Teva Pharmaceuticals USA and Impax Laboratories Inc., two generic drugmakers, have agreed to the national settlement of a class action alleging that their version of a popular anti-depressant was not as effective as the brand-name drug.

Below the fold on Page 1, reporter Gina Passarella writes that Reading, Pa.-based Stevens & Lee has hired a pair of former Buchanan Ingersoll & Rooney partners in Philadelphia to lead its white-collar defense and investigations practice. Bill DeStefano takes over as chairman of the now-seven-lawyer practice, joined by Terri Pawelski.

In more Regional News, reporter Zack Needles writes that a federal judge has ruled that former Luzerne County Common Pleas Court Judge Mark A. Ciavarella Jr. is shielded by judicial immunity from some, but not all, of the allegations brought against him by juveniles involved in the “kids-for-cash” scandal.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

Today’s Page 5 column is Antitrust Law, as Carl W. Hittinger and Terry Smith write that arbitrating antitrust has become more common in recent years, but question whether it is also getting more complicated in the process.

In a Franchise Law column on Page 7, Craig R. Tractenberg writes about international arbitration in franchising and distribution. As Tractenberg writes, “If you want foreign investment, whether you are a government or a distributor of goods and services, you need to provide a fair forum for resolving disputes.”

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

By Jaime Bochet 
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

In a follow-up piece to last week's article, reporters Zack Needles and Ben Present write that state Supreme Court Justice Max Baer has clarified comments he made to the press regarding Lackawanna County Judge Terrence J. Nealon's ex parte e-mail, saying he did not intend to imply that Nealon either should not or would not be disciplined. 

Below the fold, U.S. Courthouse Correspondent Shannon P. Duffy writes that, striking down several provisions in Pennsylvania's Medicaid law, a federal judge has declared that the state cannot impose any eligibility requirements that conflict with those passed by Congress. "Medicaid is no exception to the general rule that state laws that conflict with federal laws are pre-empted," Senior U.S. District Judge Jan E. DuBois wrote in his 61-page opinion in Lewis v. Alexander.  

Our Page 3 Regional News story today is by reporter Amaris Elliott-Engel, who writes that a defunct law firm can't arbitrate a fee dispute raised as part of a legal malpractice lawsuit filed by a former client, the Superior Court ruled 2-1 in a unpublished opinion last week.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns begin on Page 5, with our  "Antitrust Law" column by Carl W. Hittinger and Matthew A. Goldberg of DLA Piper, who wonder if a U.S.-China antitrust memorandum is a step in the right direction.

Page 7 has our weekly "Real Estate" column, this week by James M. Lammendola and Harper J. Dimmerman both of Temple University's Fox School of Business. They write: "The recent case of Goldstein v. The Zoning Hearing Board of the Township of Lower Merion, filed April 21 by the Commonwealth Court, emphatically illustrates the importance of not disregarding the mandates of local ordinances when constructing additions or new structures on one's real estate. As we shall soon see, neither the long-standing nature of a nonconformity, the expense of compliance, nor the acquiesance of one's immediate neighbors will afford relief to the landowner when a hardship is not directly tied to a pre-existing unique physical condition on one's property."

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Fresh Ink: Inside Today's Legal

By Jaime Bochet 
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Leading today's paper is a 3rd Circuit class action case by U.S. Courthouse Correspondent Shannon P. Duffy: In a setback for cable television giant Comcast Corp., a federal appeals court has refused to de-certify a class action antitrust suit brought by consumers who claim the company set out to establish a monopoly in the Philadelphia market. The suit alleges that Comcast and its would-be competitors struck a series of deals in which they "swapped" assets and customers so that each company would have "clusters" of markets. Those deals gave Comcast monopoly power, the suit says, because its market share of subscribers in the Philadelphia area increased from 23.9 percent in 1998 to 77.8 percent by 2002.

Below the fold, reporter Amaris Elliott-Engel writes that a complaint against Kline & Specter filed with the Disciplinary Board has been dismissed, according to the plaintiffs law firm and its ex-associate who raised the matter. What was alleged in the complaint is unknown, but its existence was revealed during litigation between Kline & Specter and attorney Robert F. Englert Jr. over his departure from the firm. When the matter was referred to, Philadelphia Common Pleas Court Judge Albert W. Sheppard Jr. closed the courtroom.

Our Page 3 Regional News story today is another class action article, this time from our New Jersey affiliate, the New Jersey Law Journal: A class action suit under the federal Fair Debt Collection Practices Act can proceed against a mortgage bank and a Cherry Hill, N.J., law firm for sending payment-due notices that included fees for a yet-to-be filed foreclosure. Judge Jerome Simandle of the U.S. District Court for the District of New Jersey held on Aug. 18 in DeHart v. U.S. Bank that the allegations against the Udren Law Offices and its client, U.S. Bank, were sufficient to withstand a motion to dismiss.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns begin on Page 5, with the second of two "Legal Marketing" articles by Gina F. Rubel on sorting out social media for lawyers. "It's important to remember that there are hundreds of ways to interact online. The tools outlined in this article stand out as leading contenders for lawyers and law firms as they relate to networking, search engine optimization and marketing."

Page 7 is our "Young Lawyer" or "YL" page, which features an article from the The Legal's YL Editorial Board. They write, "We were saddened to learn about a 32-year-old corporate associate who passed away in June of an apparent heart attack. Some commentators have suggested a connection between her premature death and her workload, which had been especially severe in the weeks immediately preceding her death. Let us all be reminded to make sure that neither we nor our colleagues are placing ourselves at risk through an unsustainable, demanding workload."

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Exporting an American Original: The Class Action

By Joshua D. Wolson

Special to the Legal

 

Under President Obama, antitrust enforcement has converged to some extent with a European approach.Now, it appears the Europeans are prepared to take a page from the American playbook as well.  A proposed European Union directive, or legislative act, lays out the framework for private antitrust class action suits in the national courts of EU member states, often as follow-on suits to European Commission enforcement actions.  The directive, according to recent reports, takes a more limited view of class actions than does American law by authorizing only state bodies or nonprofit organizations appointed by national governments to initiate a class action.  However, injured members of the class would be able to recover damages.  Like Federal Rule of Civil Procedure 23 and many of its state law counterparts, the draft directive will permit class members to opt out after receiving notice of a class action. 

  The European directive poses several interesting questions.  First, will the prospect of follow-on liability reduce the efficacy of the European Commission’s leniency program?  The Department of Justice’s program remains effective, even with the possibility of follow-on liability here, but might it even be more effective if self-reporting companies were not worried about treble damages being awarded against them?  Second, will victimized consumers and/or competitors really benefit from the European program?  Many people think that the real beneficiaries of American class actions tend to be the lawyers.  Yet if nothing else, the American system ensures vigorous private enforcement of antitrust laws.  Can the EU directive address the sources of this criticism while still ensuring vigorous private enforcement of the antitrust laws?   Third, will companies now face national class actions in national courts of each of the EU’s member states, or can they expect one, EU-wide class action, the results of which will be honored across national borders?  If not, the directive could wreak havoc with corporate litigation budgets. 

From the perspective of American lawyers, however, the most interesting question might be how the EU’s directive might impact American class actions, particularly in cases in which some significant number of class members would participate in both a European and an American class.  For example, when a company settles an antitrust class action, it often expects that it is buying litigation peace.  But will the release that it buys in the United States be honored in European national courts and vice versa?  If not, the value of many settlements can be expected to decrease, and some defendants might even decide that the benefit of a settlement that does not buy litigation peace is just too small.  It will be interesting to see whether the European Commission and the Department of Justice can resolve any of these issues as they continue to preach convergence in antitrust enforcement. 

*   *   *

Joshua D. Wolson is a member of the litigation department at Dilworth Paxson LLP.  He can be reached at (215) 575-7295 or [email protected].  This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter.

 

Movie Studios See Red

Several years ago, I moved into a new home and I set out for a walk.  I quickly discovered, just two blocks away, a large self-service vending machine on a street corner.  The machine seemed to have everything I could ever need and obviated the need for any last-minute runs to a convenience store or minimart.  On one side of the machine were $1 DVD rentals.  On another side was what seemed like a full convenience store, with milk, detergent, bath products and the obligatory snacks.  The machine was a “Redbox.”  Unfortunately, the convenience store part of it vanished after only a few months, but the DVD-rental part of the machine persisted for several years before finally closing up shop. 

So it was with some nostalgia recently that I learned about the antitrust lawsuits pending in federal court in Delaware about Redbox movie rental machines.  It seems that, my experience notwithstanding, the movie-rental portion of Redbox – which is owned by Coinstar – is alive and well.  Not only that, but Redbox has movie studios seeing red because it employs a distribution system that allocates less revenue to the studios than when consumers buy or rent DVDs from other sources. 

As Redbox cut into its profits, Universal Studios decided to take action.  According to Redbox, Universal pressured two distributors from which Redbox sourced its DVDs to stop selling Redbox new-release Universal DVDs.  Redbox also claims that Universal went one step further and enlisted other players in the market for DVD sales, such as Wal-Mart, also to refuse to sell to Redbox.  So, Redbox did what any red-blooded American would do – it sued. 

Specifically, Redbox filed a lawsuit in Delaware alleging that Universal’s conduct violates copyright and antitrust law, among other things.  On Aug. 17, Judge Robert Kugler dismissed the copyright misuse claims.  He did, however, let the antitrust claims go forward.  Of note, the court held that Redbox had sufficiently alleged that Universal induced or convinced others to boycott Redbox in distribution of Universal DVDs and that that conduct had an anti-competitive effect by limiting Redbox’s ability to compete in the DVD rental and sales market for Universal DVDs. 

Nor is this the end of the story.  Recently, 20th Century Fox said that it, too, would instruct its wholesale distributors to stop supplying new-release movies to Redbox.  As was to be expected, Redbox filed another suit, also in Delaware, making similar allegations against Fox.  It’s not yet clear how this will all play out, or if any of this will matter by the time the case is done.  By then, we could all be downloading or streaming our movie rentals anyway. 

One side note to all of this.  Kugler’s opinion follows a model set by Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals nearly 20 years ago in United States v. Syufy Enterprises.  In his opinion in that case, about alleged antitrust violations by an owner of movie theaters, Kozinski embedded the names of hundreds of movie titles.  Kugler could not muster quite as many, but give him credit for effort.  He managed to work in 16 movie references in four-and-half pages of factual background – without a single red herring.   

Joshua D. Wolson is a member of the litigation department at Dilworth Paxson.  He can be reached at 215-575-7295 or [email protected].  This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter.