Daily Archives: January 11, 2013

Failure-to-warn not preempted by federal law

The Ninth Circuit (en banc) held that a state-law failure-to-warn was not preempted by the Medical Device Amendments to the Food, Drug, and Cosmetic Act.  The Ninth Circuit explained that the Amendments parallels the state-law claim, and therefore does not preempt, either expressly or impliedly.

What does this mean?  The federal court of appeals made a decision whether a federal court or a state court had jurisdiction over the failure-to-warn claims.  The failure-to-warn state-law claims arise when a medical manufacturer fails to warn the patients or its physicians of known-dangers of the medical device.

The arguments in the lawsuit were rooted on the MDA explicit preemption clause – which provided that federal courts had the power to hear the case exclusively.

So why was that preemption clause irrelevant to this situation?  The Supreme Court had previously ruled, in 3 preemption cases under the MDA, that the MDA does not preempt a state-law claim for violating a state-law duty that parallels a federal-law duty under the MDA.

 

If anything else, this is a very interesting read if you are interested in preemption rationales – express, field, and conflict.

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Contingency fees in Personal Injury

The ABA Journal reported on an interesting case; where the attorney was unable to get all of its full contingency fees.  The reason?  Because the client replaced the attorney with himself prior to the $1 million settlement.

New York’s Appellate Division, First Department, ruled in an unsigned opinion that the settlement wasn’t yet final when lawyer Jeffrey Aronsky handled the case because the settlement offer hadn’t been formally communicated to the defendant, Rivlab Transportation. However, the court held that Aronsky will be allowed to place a lien on Gyabaah’s recovery and receive a pro rata fee based on his contributed work, Reuters reports.

Reuters notes that in a dissent, Justice Richard Andrias considered the settlement binding because a general release was signed and defense counsel confirmed in writing that the $1 million settlement offer was accepted.

via Lawyer Replaced by Client Can’t Collect Full Contingency on $1M Settlement, Court Rules – News – ABA Journal.

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AIG decides not to join lawsuit against government

The board of American International Group won’t be joining a $25 billion lawsuit that claims shareholders were harmed by onerous terms of the insurer’s government bailout.

The board announced its decision on Wednesday, report the New York Times Taking Note blog and the Associated Press. AIG has repaid the United States for the $182 billion bailout, resulting in a government profit of $22.7 billion.

A company run by one-time AIG chief executive Maurice Greenberg filed the suit in November 2011. The company, Starr International, once owned 12 percent of AIG. The complaint alleged the government charged “punitive” interest rates on its loans and enabled a “backdoor bailout” of the insurer’s Wall Street clients by using AIG money to pay off credit default swaps. Greenberg is represented by David Boies in the suit, which argues a Fifth Amendment takings violation.

AP spoke to Columbia law professor John Coffee about AIG’s decision. “The majority of directors decided that the reputational damage was greater than the possibility on a long-shot lawsuit,” he said.

via AIG Won’t Join Suit Claiming Its Government Bailout Harmed Shareholders – News – ABA Journal.

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Arbitration Must-Have Book

Elkouri & Elkouri is the must-have books for attorneys that handle arbitrations in the labor field.

The 7th edition is edited by Kenneth May and is available for $325.  BNAs web site describes this book as follows:

The new Seventh Edition provides additional analysis that enhances the usefulness of the volume and incorporates major points of interest to labor relations practitioners. In-depth coverage of critical topics includes:

  • Arbitrators consideration of external law in labor arbitration
  • Legislation and litigation developing standards for evidentiary privilege as it relates to union shop stewardsArbitrators views on threats and violence
  • Reconsideration of the continued viability of the plain meaning rule
  • New case law on the unauthorized practice of law as it relates to labor arbitration
  • Revision of the discussion of state and local government arbitration and interest arbitration in light of recent changes in state law

via Adjunct Law Prof Blog: Book Review Highlight Elkouri and Elkouri How Arbitration Works 2012.

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