Cuomo v Clearing House: CLearing the Way for State Action Against Banks

State Lawsuits Alleging Bank Misconduct are Not Preempted by Federal Law

The Supreme Court yesterday addressed a second attempt by the Bush Administration to thwart state lawsuits against big corporations through the preemption doctrine.  Since ruling against preemption in Wyeth v. Levine, a landmark case allowing state lawsuits to move forward against large pharmaceutical manufacturers, yesterday’s ruling opens the way to lawsuits against large international banks whose lending practices hurt consumers.  This ruling marks the second defeat of the Republican administration to create a shield for corporations.  With Barrack Obama at the helm, the new administration has made it clear that agency rules and promulgated regulations will not be used to create preemption where Congress has not chosen to do so.  The Supreme Court, though dominated by conservatives, clearly chose to honor states’ rights and the right of Congress to be the author of any preemptive intent in passing legislation or creating agencies to.

Supreme Court Concedes that Judges Can be Bought!

The Supreme Court has ruled that campaign dollars in a judicial election can jeopardize judicial autonomy and fairness—and in cases where a judge has taken large donations from a legal entity, that judge is required by judicial ethics and law to remove him or her self so that judicial impartiality may be ensured.  Judicial rulings remain suspect when sitting judges are deeply in debt to parties over whom they preside.  The opinion was no more unanimous than the proponents and opposition to campaign finance generally.  Nor is it immune to the problems of policing campaign reform efforts.  This new rule will change behavior in at least 39 states in which judges remain on the ballot—Texas being amongst those states.  While the minority opinion fears a floodgate will open to new litigation on this issue, others feel the donors themselves will engage in wise economic giving.  It is expected that actors will self-police their donations, trying to ensure that they are not overly supporting those candidates who then cannot rule on the pending appeals that are important to the donors.  It is also likely that some may try and abuse the system by supporting only those judges who are likely to rule against them.  Business interests who employ this tactic could force judges with unfavorable voting records to remove themselves when those business interests came before them. Such tactics, however, would come at a great cost and risk entrenching those “opposed” judges on the bench by filling their coffers.  Judges, under this new rule, will need to be especially vigilant in the face of large campaign donations.

Texas 14th Court of Appeals Sits on Ernst Motion for Rehearing for One Full Year

The 14th Court of Appeals, having reversed a jury determination for Ernst in her suit against pharmaceutical giant Merck, Inc., in June of 2008, waits one full year before denying Ernst’s Motion for Rehearing En Banc as moot.  The Court rules the motion moot because it withdrew its May 2008 opinion and reissued a similar opinion June 4, 2009. While the final ruling was expected from this all-Republican panel, the longer than customary delay before denying the rehearing was unusual.  The Court did to give any reason for withdrawing its June 2008 opinion, and did so without the oral arguments requested by Ernst.    It is nearly certain a new motion for rehearing en banc will be forthcoming, and subsequent to that an appeal to the Texas Supreme Court and or the Supreme Court of the United States of America.

Obama picks Sonia Sotomayer to replace David Souter on Supreme Court!

Historic President Makes Historic Appointment: First Latina Apointed to the Supreme Court!

Judge Sonia Sotomayer, a 54 year old judge on the U.S. Court of Appeals for the 2nd Circuit, was born and raised in a housing project in the Bronx. She received a full scholarship to Princeton University in 1972, only 3 years after the school began accepting women. Upon graduation she entered Yale Law School.  In 1991, President George H. W. Bush appointed Sotomayor to the Southern District of New York.  In 1997, President Bill Clinton appointed her to her current post.  Among her controversial opinions was the preliminary injunction against MLB’s attempt to unilaterally end the baseball strike in 1994 through abrogation of the Collective Bargaining Agreement and her order allowing the Wall Street Journal to publish the suicide note of Vince Foster.  Nonetheless, she has been considered a moderate by the ABA.

The Bush Administration Receives Posthumous Blow to Its Agenda

Ms. Levine Celebrates the Supreme Court Opinion Upholding a Verdict in Her Favor (Toby Talbot/AP Photo)

In the Bush Administration’s second term, because it was unable to wrest from Congress immunity for its Pharmaceutical Manufacturer friends, the Administration employed the FDA in an attempt to create immunity by agency fiat.  Such action, coupled with a vigorous push by Pharmaceutical Manufacturers, sought to create by Judicial activism what the legislature refused to give.  The Bush Administration had high hopes given its two newly placed Supreme Court Justices, Alito and Roberts.  True to form, both Alito and Roberts sided with the Bush Administration in the recent Wyeth v. Levine, a case that pitted Wyeth Pharmaceuticals against a jury award given to the musician Ms. Levine after she lost her arm following an extremely dangerous method of administering Phenergan (advocated by Wyeth on the package insert).  The pharmaceutical giant, backed by the Bush FDA, and in stark contrast to the FDA’s previous long-held position, argued that state-law claims were preempted because the FDA had final authority to approve drug labels. The Supreme Court, Stevens authoring the opinion, clearly states pharmaceutical companies bear the final responsibility for labeling, and FDA regulation does not create an impossibility of compliance with state and federal law.  This very broad opinion eviscerates each and every argument put forward by pharmaceutical companies an their Bush Administration allies.

  

George Mitchell: Obama’s Envoy to the Middle East

George Mitchell has born to an Irish father, a janitor, and an Arab Lebanese mother, Mary Saad, in 1933 in Maine.  He served in the military, went to law school, and soon thereafter chose public service.  He became a federal judge after losing the race for governor in Maine, but was subsequently appointed a senator when Edmund Muskie resigned.  He has been one of this nation’s leading Democrats, serving as Senate Majority Leader for the Democrats from 1989-1995.  In 1995, Mitchell began to work tirelessly for peace in his father’s homeland of Ireland.  Peace in that region was largely achieved under his tutelage as US Special Envoy to Northern Ireland.  Mitchell went on to lead the Walt Disney Corporation and to be general manager of the Red Sox before being called back to public service.  Now, at Obama’s request, he turns his attention to the region where his mother was born—as US Special Envoy to the Middle East. 

Israeli Leader Benjamin "Bibi" Netanyahu

George Mitchell will now have to square off with Hamas (which the US designates a terrorist organization), Fatah (the more moderate Arab-Palestinian group of the now deceased Yasser Arafat), and Israel’s newly elected, longtime political figure and head of the Likud Party, Benjamin Netanyahu. Netanyahu, though born in what is now Israel, lived in the United States (his father was a professor at Cornell in New York) and has been a staunch American Ally.    Nevertheless, Netanyahu is a hard-liner who has opposed an independent Palestinian State.  His approach to peace between Israel and Palestine can be summed up in his own words: “Right now, the peace talks are based only one thing, only on peace talks. It makes no sense at this point to talk about the most contractible issue. It’s Jerusalem or bust, or right of return or bust. That has led to failure and is likely to lead to failure again….We must weave an economic peace alongside a political process. That means that we have to strengthen the moderate parts of the Palestinian economy by handing rapid growth in those areas, rapid economic growth that gives a stake for peace for the ordinary Palestinians.” Unfortunately, this will be difficult at best because now, when creating an economic link between Israel and Palestine would take billions of dollars, those dollars are simply no longer on the table. 

George Mitchell will have to save his best performance for last (this is likely the final chapter in Mitchell’s book of accomplishments as he is 86 years old) if he is to bring together these disparate parties and hand President Barak Obama a peace agreement between Israel and Palestine. 

Sanford Pinedo Opens Corpus Christi Office!

Corpus Christi Marina

Sanford Pinedo LLP has now opened an office in Corpus Christi to extend its ability to serve the communities in Texas.  Senior Partner Chris Pinedo will conduct the firm’s business from the new office in the Frost Bank Plaza.  Catarino (Cat) Alvear has joined Chris in making the office fully operational.  From the new office, Chris Pinedo has a view of the wonderful waterfront!  We encourage our friends in Corpus Christi to stop by and visit!

A 19 Year Old Male Posses as a 46 Year Old Woman and Buys a Car. . . the 14th Court of Appeals Exercises Common Sense.

As odd as that may seem, when Charles Wallace Lovings, a nineteen-year-old male dressed in drag, entered the Helfman Dodge dealership posing as Ms. P. B., a 46 year old woman, nobody questioned his identity.  Charles Lovings was allowed to purchase a car using an I.D. from Ms. B. (allegedly having removed the photo and having replaced it with his).  Some might say this reflects the hard economic times facing car dealerships—but the State of Texas called it Gross Negligence.  Ms. B’s credit report was flagged and creditors were asked to verify any extension of credit with Ms. B. prior to extending it.  The dealership personnel did not—ostensibly because she was sitting right there in front of them.  The State of Texas subsequently apprehended Charles Lovings as he attempted to procure another automobile at another dealership—and this is where the bizarre becomes the surreal.  The State of Texas, applying a novel theory, claimed ownership of the vehicle stating that Helfman Dodge’s gross negligence facilitated Charles Lovings’ theft, and as a result, their ownership rights were forfeit.  The 14th Court of Appeals, Justice Kem Frost authoring the opinion on January 29, 2009, reversed the trial court’s ruling that allowed the State of Texas to take ownership of the automobile.  Gross Negligence or not (and that may depend on the wig) ownership is still ownership in Texas!

The Inauguration of Barack Obama

The Capitol on the Eve of the Inauguration

Today, Barack Obama will be inaugurated as this nation’s 44th president.  The cold streets of Washington D.C. will fill up in just hours with as many as two-million Americans of every color and creed—Black and White, Republican and Democrat—to see this historic event.  Among the crowds will be those whose life-experience includes the assassination of Reverend King . . . the reality that the first Black Supreme Court Justice, Thurgood Marshall, could not find a place to eat with his White colleagues near where he sat in consideration of the laws of this nation . . . and even, perhaps, some who recall the Tuskegee Airman whose actions compelled President Truman to desegregate the Armed Forces on February 2, 1948. History, however, is not the only reason many are gathering.  In the midst of two wars and a deep recession, Americans (and the world abroad) are looking for new leadership and ideas.   It is with high expectations that we ask you to join us in prayer for the new administration.

 

 

Sanford Pinedo LLP Wishes all a Happy New Year!

The Attorneys and Staff of Sanford Pinedo want to wish all of our friends, colleagues, and clients a happy new year, and pray that 2009 will be a year of peace and joy for all.  We understand that 2008 was a trying year for many.  Financially we have all seen more prosperous times; the world has seen violence and war; locally and abroad there have been natural disasters; and our own profession has faced a year of legal challenges to the promise of open courts.  Through all of this, God has been faithful.   As we embark on a new year of Hope, we pray for the administration of Barak Obama and our nation’s leaders; for the leaders of Israel and her neighbors; and for many who will find 2009 a chance to enjoy a new beginning.   Happy New Year to All!