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Features
Today, television has become the dominant medium for the dissemination of information and entertainment, and the trial lawyer who ignores this basic reality of American life does so at significant peril to his or her case. The effective trial lawyer will continue to rely on the timeless tactics of credibility, emotional appeals, and logic. Nevertheless, in order to persuade a jury effectively, the trial lawyer must deliver the case themes and facts in a way that is consistent with how jurors process information in our high-technology age.
It has been estimated that at least 600,000 people have brought asbestos-related personal injury suits. Typically, each plaintiff sues dozens of defendants, so the total volume of litigation has reached nearly astronomical proportions. The total amount spent on asbestos litigation (awards and expenses) to date is staggering and has been estimated to be on the order of $54 billion. Many critics have said that this litigation has been abused, leading to the enrichment of plaintiff lawyers at the expense of those actually injured by asbestos exposure. According to one study, only about 43% of total spending has reached the claimants as their net recovery. <i>See</i> Stephen Carroll, <i>et al</i>., <i>Asbestos Litigation Costs and Compensation: An Interim Report,</i> RAND Institute for Civil Justice, Santa Monica, Calif. (Sept. 2002). The RAND report is available at <i>www.rand.org/publications/DB/DB397.</i>
Features
A year ago, manufacturers and marketers of dietary supplements benefited when the U.S. Food and Drug Administration (FDA) implemented a new regulation allowing such companies to make unproven health claims on their labels. Under the new relaxed FDA requirements regulating the marketing and promotion of dietary supplements, manufacturers have more leeway to tout the healthfulness of products by making "qualified health claims" on dietary supplement labels, even if there is no "significant scientific agreement" over the validity of these claims. Under the former policy, supplement manufacturers that had scientific support for their claims, but lacked conclusive evidence, were prohibited from marketing their potential health benefits, thus losing out on important marketing opportunities. The new, more flexible dietary supplement regime enables companies to market their products more aggressively and increase sales.
Features
Recent rulings of importance to you and your practice.
A recent circuit court decision regarding the interpretation of section 365 of the Bankruptcy Code has set up a conflict between two circuits. On March 15, 2004, the Court of Appeals for the First Circuit issued an opinion regarding whether bankruptcy debtors are required to cure non-monetary defaults prior to assuming unexpired leases under section 365 of the Bankruptcy Code, 11 U.S.C. ' 365. The First Circuit found -- expressly contrary to a holding of the Ninth Circuit Court of Appeals -- that debtors are not required to cure such defaults, resulting in a split in the circuits over a very widely used section of the code.
Features
The U.S. Supreme Court's recent <i>Till</i> decision on the proper cramdown interest rate will disappoint secured lenders. <i>Till v. SCC Credit Corp.</i>, 124 S. Ct. 1951 (2004). As we show below, Till should be limited to its narrow fact pattern, but is still bad news for lenders. They now will be forced to fight an uphill battle to prove that a higher risk premium should be added to the prime rate applicable to their crammed down secured claim. In Till, the plurality accepted a risk adjustment premium in the range of 1% to 3% (Justice Thomas, concurring, could accept no premium at all). Commercial lenders will thus have to overcome Till by showing that they are entitled to a truly "market" interest rate.
It has become conventional wisdom that bankruptcy -- even Chapter 11 -- is now largely a process controlled by secured lenders. Whatever the merits of this view, the undersecured lender is still in an unenviable position as a result of the Supreme Court's holding in <i>Timbers</i> that undersecured creditors who are stayed from foreclosing on their collateral during bankruptcy are not entitled to accrue or collect interest on their claims during the bankruptcy case or otherwise be compensated for their loss.
The definition of what constitutes a "security" has broadened and changed dramatically over the years under both case and statutory law. Attorneys concentrating in securities law (whether by virtue of litigation or transactional work), as well as governmental and self-regulatory organizations, ranging from the Securities and Exchange Commission (SEC) to the National Association of Securities Dealers (NASD) to various exchanges, have been dealing with the increasingly complex question of what constitutes a "security." This question is often posed to resolve particular claims in specialized venues, testing the acumen of even the most sophisticated securities practitioners and industry members. This two-part article describes the transfer process and offers sample forms as examples.
In a decision that caused a stir among the bench and bar, New York State's highest court, the Court of Appeals, sanctioned a highly controversial practice that enables custodial spouses to draw child support twice from the same income stream.