Former NLRB chairman withdraws nomination

Robert J. Battista, the former chairman of the National Labor Relations Board, has asked President George W. Bush to withdraw his nomination to the board for another term. Batista is joining law firm Littler Mendelson, specializing in management and labor disputes.

Battista and other Republican members of the board came under fire from Congressional Democrats last year over a series of decisions the lawmakers said eroded the rights and protections of union members. Sen. Edward Kennedy, D-Mass., called the board’s GOP majority “the most anti-worker, anti-labor, anti-union board in its history.”

The terms of three of the board’s members expired at the beginning of the year, leaving the board to take the unusual step of declaring a two-person quorum so that the board could issue decisions with only two members. The Senate had yet to act on the nomination of Battista or the other two nominees - Democrat Dennis P. Walsh and Republican Gerard Morales - since Bush nominated them in late January.

White House spokeswoman Emily Lawrimore said yesterday: “It’s unfortunate that the country has lost another devoted public servant because the Senate failed to act on important nominations in a timely manner.”

Reacting to the withdrawal of Battista’s nomination today, Kennedy said: “Mr. Battista’s tenure on the Board made clear that he was not going to stand up for the nation’s workers.”

“I urge the President to send us a new nominee who will reverse the Board’s anti-worker, anti-union, anti-labor bias,” Kennedy said. “In these difficult economic times, it is more important than ever for employees to have a Board that protects their rights.”

Monday status conference: Cinco de Mayo edition

Justices from the nation’s highest court will convene in a conference on Thursday, lawmakers are busy trying to hammer out the farm bill and other matters (more on that below), and a brand-spanking new issue of Lawyers USA is out as you celebrate Cinco de Mayo today. Here are some highlights from this issue. Subscribers can click on the links for the full story.

Under the best of circumstances, divorce proceedings rarely are completely pleasant or smooth-sailing for a couple and their lawyers. But in an uncertain economy and shaky housing market, divorce is becoming increasingly complicated. More here.

Estate planning lawyers are finding that many prenuptial agreements for older couples contain costly omissions - about health care, nursing home costs and other “elder care” costs. More here.

A recent U.S. Supreme Court ruling addressing the definition of driving while intoxicated for purposes of federal sentencing is expected to have a broad impact on criminal cases, but also leaves open many questions, criminal lawyers say. More here.

Prepaid funeral plans may involve more risk than buyers realize. More here.

In other news and chatter:

Lawmakers want to hold hearings to investigate whether the practice of securities lawyers paying plaintiffs to file class action lawsuits happens at places other than Milberg Weiss. (BI)

Is the False Claims Act a legal gold rush for the tort bar? (WSJ Law Blog)

There will soon be a vacancy at the head of the Justice Department’s Criminal Division - giving Attorney General Michael Mukasey the opportunity to make a key appointment. (WaPo)

Many case-strapped states are releasing prisoners early in order to ease their budgets. (WaPo)

Lawmakers are working to come up with a veto-proof farm bill plan. (AP)

The IRS and FBI are investigating whether mortgage lenders ignored the signs that some borrowers were getting into subprime deals that would eventually overwhelm them - and the credit industry. (NYT)

Friday Morning Docket: Court readies to hear last arguments of term

The warm days make it feel almost like summer, but school’s not out yet for lawmakers in Congress, who will have a busy week next week taking up legislation including the bill that would restart the statute of limitations for equal pay claims with the issuance of each paycheck - a bill that responds to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.

The justices of the Supreme Court will hold a conference today, and I’ll post updates about any newsworthy orders that may emerge this afternoon.

Meanwhile, next week the Court holds its last week of oral arguments this term.

The week kicks off with arguments in Sprint Communications v. APCC Services Monday morning, a case considering whether a plaintiff assigned the right to pursue a legal claim has established standing under Article III, even though the plaintiff will not recover any judgment.

Then the Court will hear attorneys in Engquist v. Oregon Department of Agriculture, which considers whether the decision in Village of Willowbrook v. Olech allows so-called “class of one” equal protection claims against government bodies in the context of employment discrimination.

Tuesday the Court will hear Davis v. Federal Election Commission, a case seeking to determine whether the Millionaire’s Amendment to the 2002 campaign finance law, which raises the contribution limit for those running against a self-financed candidate, violate free speech clause of the First Amendment and the equal protection principle of the Fifth Amendment.

Then in Giles v. California, the Court will hear arguments on whether, under the Confrontation Clause, a defendant who admitted killing his ex-girlfriend forfeit his right to confront her about her statements on a previous domestic incident.

On Wednesday, in Metlife v. Glenn, the Court considers whether insurance carriers have the right to represent to a court that an individual is disabled when the insurance carrier separately determines for other purposes that the individual is in fact not disabled.

And finally, the Court will hear arguments in Meacham v. Knolls Atomic Power Lab, the Court will consider whether the burden of proving whether the reasonableness of adverse employment decisions occurring as part of a claim for age discrimination under the federal Age Discrimination in Employment Act rests with the employee or the employer.

Meanwhile,

Even as he voted in support of keeping Kentucky’s lethal injection death penalty method, Justice John Paul Stevens renounced capital punishment, The New York Times’ Linda Greenhouse wrote. (NYT)

President Bush is pushing for a national goal of halting the growth of U.S. greenhouse gas emissions by 2025 - a voluntary target - mostly by curbing power plant pollution. (WaPo)

The head of the union that represents 6,000 federal food inspectors told a congressional committee Thursday that the Agriculture Department tried to intimidate him and other employees who reported violations of regulations, an allegation denied by the agency. (AP)

Tax day at the Supreme Court

The fact that today is April 15 was not lost on the U.S. Supreme Court this morning.

“Remarkably enough, we have two tax cases to announce today,” said Chief Justice John Roberts, Jr. at the beginning of today’s session, drawing laughs from the audience.

In the first case, authored by Justice Samuel Alito, a unanimous Court threw out a state court ruling that allowed Illinois to tax a portion of Ohio-based MeadWestvaco Corp.’s capital gains from the 1994 sale of Lexis/Nexis. More on that case, MeadWestvaco v. Illinois Department of Revenue, No. 06-1413, here from CNNMoney.

In another case, penned by Roberts, the Court limited to three years the time frame that coal mining units of TECO Energy Inc. can get tax refunds in their dispute with the federal government over coal export tax payments. More here from the Wall Street Journal on U.S. v. Clintwood Elkhorn Mining Co., No. 07-308

Monday status conference: From the Ten Commandments to the Second Amendment

As Hollywood remembers Charlton Heston as a screen legend, gun rights activists remember him as the face of the gun rights movement, as well as the fire in its belly, the Associated Press writes. His death comes as the nation waits for the Supreme Court to decide what could be the most significant Second Amendment case of this generation: D.C. v. Heller.

Meanwhile, there is a shiny, new issue of Lawyers USA on the stands today. Here’s a peek at what’s inside (subscribers can click the links for more).

A controversial test that is supposed to detect “malingering” is gaining popularity among defense experts in personal injury, workers’ compensation and other cases. More here.

For thousands of hearing-impaired lawyers in the U.S., the trick to practicing law in a hearing world is largely one of technology. But they also say it takes more than machinery to do the job. More here.

They are complicated, they are impersonal, they are unsexy - and most of all they are rare. Intellectual property trials present a variety of challenges for attorneys, not the least of which is explaining a complex issues to twelve men and women off the street. More here.

A new study bolsters one of plaintiffs’ key claims in rollover cases - that weak roofs are the main cause of death and serious injuries in rollover accidents. More here.

In other news:

A backlog is forming on Ohio’s death row while officials wait for the Supreme Court’s ruling in Baze v. Rees. (AP)

The Supreme Court appears to be on the verge of endorsing a doctrine that the FDA should not be second-guessed by courts, The New York Times reports. (NYT)

The Washington Post reports that stalemate over the Federal Election Commission’s nominating process, which already has crippled the agency’s ability to uphold existing campaign laws, is indefinitely delaying the implementation of a new rule designed to shine more light on fundraising by lobbyists for members of Congress and presidential candidates. (WaPo)

Bill to boost FDA tobacco regulation advances

Yesterday the House Energy and Commerce Committee advanced a bill that would give the Food and Drug Administration the power to regulate tobacco products.

The measure would give the FDA the ability to regulate cigarette labels, prohibit certain kinds of products such as flavored cigarettes, and even recall tobacco products it deems to be unreasonably harmful.

“It’s hard to believe that the FDA regulates toothpaste but not cigarettes,” New Jersey Democrat Frank Pallone said in backing the bill, which would also boost tobacco fees to fund the new measure from $85 million to $712 million.

Opponents of the bill cited fears the bill would spur tobacco companies to merge into larger corporations that could better comply. The Federal Trade Commission will study the competitive impact of the bill. (Reuters)

Friday morning docket: Spring forward edition

It’s chilly in Washington this morning, but the days will feel longer after we turn the clocks forward this weekend (don’t forget - unless you live in Arizona or Hawaii). While we wait for the cherry blossoms, here’s a legal news wrap up:

The Supreme Court was out this week, but lawmakers on Capitol Hill have been busy.

Lawmakers want to know why CEOs of some mortgage lending companies are being paid so much at a time when their companies are losing money in the mortgage crisis. (AP)

Meanwhile, as federal regulators take a closer look at some mortgage lenders, mortgage lenders are looking for ways to raise some cash. (WSJ).

Responding to the recent scare over lead-laced products in the hands of children, the Senate passed a bill aimed at boosting safety inspections of toys from overseas. (WaPo)

The Senate Finance Committee on Thursday voted unanimously to approve Douglas H. Shulman to be the next IRS commissioner. (AP)

Do several letters sent to members of Congress have some link to this week’s bomb blast in Times Square? (WaPo).

The EEOC sees a big boost in job discrimination complaints. (AP)

Trial lawyers’ group, device maker react to Medtronic decision

The American Association for Justice (formerly known as the Association of Trial Lawyers of America) is reacting to today’s decision by the U.S. Supreme Court barring state tort law claims by patients against medical devise manufacturers, Riegel v. Medtronic.

AAJ CEO Jon Haber issued this statement this afternoon:

“Today’s Supreme Court decision in Riegel v. Medtronic limits the rights of people to receive justice through the legal system when they are injured by the negligence or misconduct of others,” Haber said. “This decision should be narrowly viewed as applying only to certain medical device cases and should not serve as precedent for cases involving drugs and other consumer products.

“We believe this ruling seriously misconstrues Congressional intent.”

Meanwhile, in a statement to The Minneapolis Star-Tribune, Medtronic spokesman Rob Clark said:”We are aware of today’s favorable decision for Medtronic by the Supreme Court. This is an important decision for the medical device industry and our continued ability to innovate and bring lifesaving technology to patients.”

High Court rules in favor of federal preemption

Today, the Supreme Court issued five decisions, three of which hold that federal law preempts certain state regulations, state claims, or claims of jurisdiction by state administrative authorities.

In a decision that surely disappoints the plaintiff’s bar, the Supreme Court held in Riegel v. Medtronic, No. 06-179, that state law tort claims challenging the safety of FDA-approved medical devices are barred by federal law.

The opinion, authored by Justice Antonin Scalia, was based on the rationale that the Food and Drug Administration and federal laws covering device pre-market approval create a carefully-crafted balancing system for ensuring that safe products are on the market, while assuring that devices needed by patients are accessible. Federal regulators - not state authorities, and certainly not juries seated in state court trials - are in the best position to weigh the risks and benefits in this scheme.

“When state common law requires a recalculation of that balance, it frustrates” the regulatory scheme, Scalia said in comments this morning from the bench. “Leaving [it] to a jury [is] even worse.”

In Preston v. Ferrer, No. 06-1463, the Court held that the Federal Arbitration Act precluded the attempt by television’s “Judge Alex” Ferrer to go to a state court seeking a ruling that his contract with his former manager was void, rendering the contract’s arbitration clause void as well. He also sought to have the case heard before a state labor commission, claiming it held exclusive jurisdiction.

The opinion by Justice Ruth Bader Ginsburg held that once parties agree to arbitrate all disputes arising out of a contract, as Ferrer and his manager did, the Federal Arbitration Act preempts state administrative agencies, and the parties must arbitrate the dispute.
Allowing parties to go to state courts first “would likely [create] long delays, and Congress enacted the FAA to avoid delays,” Ginsburg said from the bench.

The court also ruled in favor on federal preemption in Justice Stephen Breyer’s opinion in Rowe v. New Hampshire Motor Transport Ass’n, No. 06-457, that federal law trumps two state laws requiring carriers delivering tobacco products to ensure that the recipients of the packages were of legal age to buy tobacco products.

In the other two opinions, both penned by Justice John Paul Stevens, the Court held that ERISA does not provide a remedy for individual injuries distinct from plan injuries for an administrator’s failure to follow the plan holder’s investment directions. But, the Court held that it does authorize recovery for for fiduciary breaches that impair the value of the entire plan. (LaRue v. DeWolff Boberg & Associates, No. 06-856) and that state courts can adopt broader rules of criminal procedure than those required by the U.S. Supreme Court (Danforth v. Minnesota, No. 06-8273).

More on these cases on coming up on this blog over the next few days, tomorrow on Lawyers USA’s website, and in the next print edition of Lawyers USA.

Lawyers to employer clients: Proceed on new FMLA rules with caution

The ABA Journal reports that new issues may soon arise for employers and their attorneys as a result of revisions to the Family Medical Leave Act.

Under a new law signed last week by President George W. Bush, employees who have family members who fall ill, become injured, or suffer some other “exigency” during active duty in the military can get up to 12 weeks of FMLA leave to care for them.

Even though the new rules are not technically in effect yet - the Department of Labor has to formally adopt regulations reflecting them first - the Labor Department nonetheless is urging employers to follow the spirit of the new law, prompting some law firms to issue guidance to their clients as to what constitutes a qualifying “exigency.”

A newsletter from law firm Paul, Hastings, Janofsky & Walker advises employers to “interpret the term broadly” while attorneys at Littler Mendelson cautioned clients that “[e]mployers should be aware that time off under this new legislation may be in addition to family leave available under state law.”