Indictment Requested Against Bush for Torture in Canada

The Center for Constitutional Rights (CCR) and the Canadian Centre for International Justice (CCIJ) have submitted a 64-page letter to the Attorney General of Canada making the factual and legal case for indicting President George W. Bush for torture under the Canadian Criminal Code and the Convention Against Torture (CAT).  The move comes in advance of Bush’s scheduled October 20 speech at the Surrey Regional Economic Summit in Surrey, British Columbia.

CCR and CCIJ are calling on Canada’s Attorney General to begin a criminal investigation of Bush for his administration’s creation and use of a systematized torture program -- a program, they note, that Bush himself has admitted to authorizing and which is supported by ample publicly available evidence.  The organizations assert that Bush must be held accountable for actions he ordered and oversaw, including “enforced disappearance and secret detention, exposure to extreme temperatures, sleep deprivation, punching, kicking, isolation in ‘coffin’ cells for prolonged periods, threats of bad treatment, solitary confinement, and forced nudity” of detainees.”

Announcing this action, CCR Senior Staff Attorney Katherine Gallagher stated:
“George Bush has openly admitted that he approved the use of torture against men held in U.S. custody. . . . Despite this admission, no country has been willing to investigate and prosecute Bush’s criminal acts, leaving the victims of his torture policies without any justice or accountability. Canada is a signatory to the Convention Against Torture, and has an obligation to investigate Bush for his leadership role in the U.S. torture program. Torturers – even if they are former presidents of the United States – must be held to account and prosecuted. We urge Canada to put an end to impunity for Bush.”
CCIJ Legal Director Matt Eisenbrandt said:
“Canada has a strong legal framework and there is absolutely no ambiguity in our criminal code when it comes to committing or allowing torture. . . . There is grave evidence that former President Bush sanctioned and authorized acts of torture, not only in violation of Canadian laws, but also of international treaties that Canada has ratified. It is therefore clear that our government has both the jurisdiction and the obligation to prosecute Bush should he set foot again on Canadian territory.”
Noting that the United States has refused, so far, to live up to its obligation to hold torturers accountable for their actions under the CAT, CCR and CCIJ requested that Canada abide by its commitments as a signatory to the Convention and hold President Bush liable for his actions.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law,  and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture.  AFJ applauds and supports these groups’ efforts to achieve accountability for torture.

The document, along with over 4,000 pages of supporting materials, is available online.  To learn more about accountability for torture, visit our webpage []

Worst Decisions: A Tie for #1 - AT&T Mobility v. Concepcion

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, we looked at one of the two worst, Wal-Mart v. Dukes, which allows corporations to discriminate as long as they do so on an enormous scale

In our tie for the #1 slot, this case has profound ramifications for the millions of Americans who have to sign contracts to get a job, or to buy a product or service.

Worst Decisions of the 2010-11 Corporate Court Term: #1 (tie) AT&T Mobility v. Concepcion
Giving Corporations a License to Steal

In a 5-4 vote, the Corporate Court majority enacted sweeping protections for corporate wrongdoers. Consumers could once band together to access justice in court when defrauded by corporations.  After AT&T, each consumer will likely be forced to fight it out alone before a private arbitrator chosen by the company that cheated them. This divide-and-conquer strategy is favored by corporate scofflaws because they know isolated cases are often not worth bringing at all. A company may have reaped millions in ill-gotten gains, but what consumer would sue to regain damages like the $30.22 unlawfully charged to the Concepcións and other consumers in this case?

The majority achieved this radical result by transforming the 1925 Federal Arbitration
Act (FAA), which was enacted to protect arbitration among corporate equals, into one of big business’s most powerful shields against accountability. To activate the shield, corporate lawyers need only draft contracts that people must sign if they want to buy a product or service or get a job and which force consumers and employees into binding one-on-one arbitration when a dispute arises.

By re-writing an 86-year-old federal statute, five justices enabled AT&T to reap millions by advertising “free” cell phones to lure customers, unlawfully charging them a $30 sales tax, and hiding clauses in the service contract that forced consumers to waive their right to join a lawsuit with others defrauded in the same scheme.

California’s Supreme Court considered such adhesion contracts to be unconscionable, and struck them down. But where California judges saw injustice for consumers, the five conservative justices of the Corporate Court saw only burdens on corporate defendants.  Corporations will now be able to decide on their own which civil rights and consumer protections they want to obey, knowing that there will be no effective means available to their victims to obtain redress.

AT&T v. Concepción is tied for number one on AFJ’s Worst Decisions of the 2010-11 Corporate Court Term because nearly every aspect of Americans’ everyday lives is controlled by contracts that individuals must sign to get a job, or buy a product or service. After AT&T, these “license to steal” clauses will almost certainly appear with greater frequency.

Worst Decisions: A Tie for #1 - Wal-Mart v. Dukes

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday at #3, we talked about Janus Capital v. First Derivative, which gives mutual-fund bosses "an easy way to skirt class-action lawsuits."

In our tie for the #1 slot, one of the contenders had an enormous and immediate impact on more than a million women in the workforce, and opens the door for discrimination on a massive scale.

Worst Decisions of the 2010-11 Corporate Court Term: #1 (tie) Wal-Mart v. Dukes

In Wal-Mart, the Supreme Court prevented more than a million women from banding together to pursue their case against the discriminatory practices of Wal-Mart management. The 5-4 majority rewrote the federal rule governing class actions by setting a higher “commonality” threshold for all plaintiffs. This will likely bar employees from seeking injunctive relief that previously only needed to pass an “easily satisfied” test.

The majority created new hurdles for disparate-impact cases, where subjective personnel decisions have led to widespread gender or racial disparities in the workforce, by holding that “proving a … disparity is not enough,” and rejecting plaintiffs’ overwhelming statistical evidence of widespread discrimination. The majority instead suggested that victims must prove that conscious and intentional discrimination by top management directs the employment decisions made below in order to obtain class certification. These nearly impossible standards will undermine the incentive for employers to set up objective pay and promotion practices based on published criteria and clear merit-based evaluations of applicants. These practices are very effective at combating the kind of discrimination that occurred at Wal-Mart, where job postings were non-existent and women had to wait for the “tap on the shoulder” (that mostly never came) from mostly male managers to be promoted.

The majority also elevated the company’s written non-discrimination policy to exalted status – despite a complete lack of evidence that it was followed – and assumed that “most managers in any corporation … would select sex-neutral, performance-based criteria for hiring and promotion.” The 120 affidavits from women being called “Janie Qs’” at executive meetings, being paid less than a just-hired 17-year-old boy because “you aren’t male, so you can’t expect to be paid the same,” or told to “doll up” and “blow the cobwebs off” make-up were dismissed as “prov[ing] nothing at all.”

Wal-Mart v. Dukes is the one of the worst decisions of the 2010-11 Corporate Court term because it will allow corporations to get away with discrimination as long as they discriminate on a massive scale.

A Bill To Create New Federal Judgeships

On October 6, the Senate Judiciary Committee will consider S.1014, The Emergency Judicial Relief Act of 2011.

The bill, introduced by Senator Dianne Feinstein (D-CA) in May, would create 10 new district court judgeships:
  • 2 for the District of Arizona
  • 4 for the Eastern District of California
  • 1 for the District of Minnesota
  • 1 for the Southern District of Texas
  • 2 for the Western District of Texas
The bill would also convert existing temporary judgeships in the District of Arizona and the Central District of California into permanent judgeships. The incumbents in the current temporary judgeships would remain in the converted seats, and the president would name nominees to fill the new positions.

The bill has bipartisan support from co-sponsors Senator Barbra Boxer (D-CA); Senator John Cornyn (R-TX); Senator Al Franken (D-MN); Senator Kay Bailey Hutchison (R-TX); Senator Amy Klobuchar (D-MN); Senator John Kyl (R-AZ); and Senator John McCain (R-AZ).

Also on October 6, the committee will vote on five judicial nominees: Evan Wallach to the United States Circuit Court for the Federal Circuit, and four United States District Court nominees (Dana Christensen, District of Montana; Cathy Bencivengo, Southern District of California; Gina Marie Groh, Northern District of West Virginia; Margo Brodie, Eastern District of New York). 

All five were automatically held over by the Republican members of the Judiciary Committee at its last Executive Business meeting, rather than being considered on the day their nominations were first brought to the committee.

The creation of new federal judicial seats and the confirmation of nominees to fill them will help to ease the crushing case-loads that are currently overwhelming inadequately staffed federal courts and preventing people from gaining access to justice.

For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Worst Decisions, #3: Janus Capital v. First Derivative

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday at #4, we talked about American Free Enterprise v. Bennett, which makes it easier for wealthy special interests to buy elections.

Worst Decisions of the 2010-11 Corporate Court Term: #3: Janus Capital Group v. First Derivative Traders

In a 5-4 decision, the Corporate Court created a major new loophole that allows holding companies in the $12 trillion mutual-fund industry to escape liability for securities fraud.  The corporations may now create subsidiaries that can then make false and misleading statements on behalf of the parent company and that have no assets other than investors’ money.

Janus Capital Group is a huge financial investment corporation that has created numerous subsidiaries, including Janus Investment Fund, which deliberately misled investors in its mutual fund prospectus by telling the public that it did not allow hedge funds to engage in “market time” transactions. Behind the scenes, hedge funds were routinely engaging in just those sorts of timing transactions with Janus. When the truth came out, the Janus stock dropped precipitously, costing deceived investors millions.

Rule 10b-5 of the securities laws prohibits “mak[ing] any untrue statement of a material fact.” In this case, the deception about market timing certainly qualified as an untrue material statement. However, the pro-corporate majority decided Janus Capital could not be liable because it had not “made” the statement, only Janus Investment Fund had. It arrived at this fiction by concluding that only the party with “ultimate authority” over a statement can “make” it. A speechwriter does not a make a statement, only the speaker does, the majority reasoned.

The dissent attacked this conclusion as a distortion of the common use of the English language. “Every day, hosts of corporate officials make statements with content that more senior officials of the board of directors have ‘ultimate authority’ to control…. Nothing in the English language prevents one from saying that several different individuals, separately or together, ‘make’ a statement that each has a hand in producing.”

The tipping point between these competing visions should turn on whether one believes Congress, in drafting Rule 10b-5, intended to immunize corporate fraud or protect investors. The pro-corporate majority argues that Rule 10b-5 must be read narrowly, which in this instance would immunize corporate fraud. As Justice Breyer noted in dissent, the majority’s interpretation would often leave no one accountable under the securities laws, even for fraud committed through intentional lying, if the subsidiary’s board was as deceived as investors were by the original perpetrator’s lies.  It is difficult to imagine that Congress intended to open such a gaping loophole in the law.

Janus Capital Group v. First Derivative Traders is number three on AFJ’s Worst Decisions of the 2010-11 Corporate Court term because, as one article put it, “[t]he U.S. Supreme Court has shown mutual fund bosses an easy way to skirt class-action lawsuits.”

Upcoming Votes On Long-Delayed Nominees

Senate Majority Leader Harry Reid (D-NV) announced late last night that the Senate will vote on six judicial nominations on Monday, October 3. 

District Court nominees Nanette Jolivette Brown (Eastern District of Louisiana), Nancy Torresen (District of Maine), William Francis Kuntz, II (Eastern District of New York), Marina Garcia Marmolejo (Southern District of Texas), and Jennifer Guerin Zipps (District of Arizona) are scheduled to be confirmed by unanimous consent. 

A roll call vote will be held to vote on the confirmation of Henry Floyd to the United States Court of Appeals for the Fourth Circuit.  The seats that Floyd, Kuntz, Marmolejo, and Zipps will fill if confirmed have all been deemed judicial emergencies by the Administrative Office of the United States Courts.

Senator Reid also secured unanimous consent to vote on four additional district court nominees at a time to be determined by the majority leader, after consultation with the Republican leader, sometime after October 11: Jane Margaret Triche-Milazzo (Eastern District of Louisiana), Alison Nathan (Southern District of New York), Susan Owens Hickey (Western District of Arkansas), and Katherine Forrest (Southern District of New York).

All of these nominees were sent to the Senate floor by the Senate Judiciary Committee with little to no opposition; eight were reported out on voice votes and two by strong, bipartisan roll call votes (Nathan, 14-4; Hickey, 15-3). Nonetheless, Republican stall tactics to keep President Obama’s nominees off the bench have dragged out the process of filling these empty judicial seats. 

The average time from nomination to confirmation for the six nominees to be considered on October 3 will be 238 days; Marina Marmolejo, whose seat is a judicial emergency, will have waited 433 days to be confirmed to take her place on the federal bench.

For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Worst Decisions #4: Arizona Free Enterprise v. Bennett

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday at #5, we talked about Connick v. Thompson, which makes it easier for prosecutors to hide evidence.

Worst Decisions of the 2010-11 Corporate Court Term: #4 Arizona Free Enterprise Club’s Freedom PAC v. Bennett 
Protecting the Power of Wealthy Special Interests to Buy Elections

In a 5-4 vote, the Supreme Court overturned an inventive policy that Arizona implemented in 1998 to combat corruption by reducing the influence of powerful special interests in elections. 

Arizona voters passed the Citizens Clean Election Act in 1998 in response to a state political culture that the New York Times called “an open sewer of corruption.”  Prior to the Act, two consecutive governors were removed for corruption and almost 10% of the state legislature was charged with misconduct, including a chairman of the House Judiciary Committee who was caught stuffing a gym bag with $55,000 in cash.  The Act allowed candidates who abide by strict spending limits to receive public funds for their campaigns and to receive increases in those funds to match spending by well-funded independent groups supporting their opponents or wealthy self-financing candidates.

The Supreme Court overturned the Act in an ironic interpretation of First Amendment free speech law.  The Court’s conservative majority examined a law that increased speech by providing candidates with more resources to communicate with voters and determined that it violated the First Amendment by substantially burdening privately funded candidates. 

In her dissent, Justice Kagan stated that preventing corruption following a political scandal should be deemed a compelling government interest that passes constitutional muster.

She added that the law applies equally to candidates of all viewpoints, and that what the Act’s opponents seek “is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program.”

Arizona Free Enterprise Club’s Freedom PAC v. Bennett is number four on AFJ’s Worst Decisions of the 2010-11 Corporate Court term because the Court has closed off another avenue of reform designed to reduce the undue influence of corporate interests and wealthy candidates in political races.

Worst Decisions, #5: Connick v. Thompson

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Last Friday, at #6, we talked about PLIVA v. Mensing, which gave generic drug-makers a free pass on safety labeling.

Worst Decisions of the 2010-11 Corporate Court Term: #7 Connick v. Thompson
Making it Easier for Prosecutors to Hide Evidence at the Expense of Innocent Defendants

A 5-4 split decision protected district attorneys who allow prosecutors in their office to illegally withhold exculpatory evidence from criminal defendants.  

More than 14 years ago, John Thompson was accused of a high-profile murder.  Following the publicity surrounding the murder accusation, victims of an unrelated armed robbery came forward and accused Thompson of that robbery.  Thompson was convicted of the robbery after prosecutors hid the fact that the robber’s blood type did not match Thompson’s.

In the subsequent murder trial, Thompson did not testify to rebut the charges against him because doing so would have allowed his robbery conviction to be entered into evidence.  Thompson was convicted of murder and spent 14 years on death row.  Thompson’s private investigator found the exculpatory blood evidence one month before his scheduled execution.  As a result, both of Thompson’s convictions were vacated.

Following his release, Thompson won $14 million in damages from Harry Connick, the Orleans Parish District Attorney, for his failure to train prosecutors about required disclosures of exculpatory evidence to defendants under Brady v. Maryland. The district attorney appealed this award, arguing that he could not be liable based on a single violation unless strong indications existed that training was necessary.  Justice Thomas, writing for the Court, reversed the award, holding that “Thompson did not prove that [Connick] was on actual or constructive notice of, and therefore deliberately indifferent to, a need for more or different Brady training.”

Justice Ginsburg, in a scathing dissent that she read from the bench, argued that the conservative majority ignored extensive evidence demonstrating to the district attorney the need for training.  The Court dismissed as irrelevant four Orleans Parish convictions that were reversed in the 10 years prior to Thompson’s armed robbery trial because of Brady violations.  In addition to the blood evidence, the dissent described the prosecution’s failure to inform Thompson of several pieces of evidence that called into question the credibility of key witnesses.

Justice Ginsburg wrote that “it was hardly surprising that Brady violations in fact occurred” since: “(1) Connick, the Office’s sole policymaker, misunderstood Brady.  (2) Other leaders in the Office, who bore direct responsibility for training less experienced prosecutors, were similarly uninformed about Brady.  (3) Prosecutors in the Office received no Brady training.  (4) The Office shirked its responsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements.”  The dissent characterized the district attorney’s office as a “tinderbox” in which “Brady violations were nigh inevitable.”  Thompson’s expert witness called Connick’s supervision of prosecutors on Brady “the blind leading the blind.” 

Connick v. Thompson is number five on AFJ’s Worst Decisions of the 2010-11 Corporate Court term because district attorneys will now have less of an incentive to ensure that the prosecutors who work for them understand their legal obligations. As a result, innocent criminal defendants may never learn of favorable evidence that could save their lives and ensure their freedom.

President Obama Nominates Nguyen, Wimes

President Obama has nominated Judge Jacqueline H. Nguyen to the United States Circuit Court of Appeals for the Ninth Circuit, and Judge Brian C. Wimes to the United States District Court for the Eastern and Western District of Missouri.  This Circuit Court seat is one of 35 federal vacancies to be designated a judicial emergency by the Administrative Office of the United States Courts.

Judge Nguyen is currently a United States District Judge in the Central District of California in Los Angeles and is the first Vietnamese American to serve on the federal bench.  If confirmed, she would be the United States’ first Asian Pacific American woman to serve as a federal appellate court judge and one of only two Asian Pacific Americans actively serving in the nation’s federal Courts of Appeals.

Judge Wimes has served since 2007 on the 16th Judicial Circuit Court of Missouri.  When appointed to the seat, he was the only African-American judge serving in Jackson County.

With these nominations, there are now 58 nominees pending for the 115 vacancies in the federal judiciary.  For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Worst Decisions, #6: PLIVA v. Mensing

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #7, we talked about Ashcroft v. Al-Kidd, which protected the unfair tactics used to detain an American citizen.

Worst Decisions of the 2010-11 Corporate Court Term: #6 PLIVA v. Mensing
Giving Generic Drug Makers a Free Pass to Withhold Information About Drug Safety

In PLIVA, Inc., the Court’s 5-4 conservative majority immunized generic drug manufacturers, whose drugs comprise 75 percent of the market, from state tort liability when they fail to inform the Federal Drug Administration (FDA) that their labels inadequately warn consumers of health risks.

Brand-name drug manufacturers have the ability and the duty to change label warnings based on newly-discovered risks without consulting the FDA, but generic drug manufacturers need only copy brand-name warnings. To enhance drug safety, the FDA took the position that generic-drug makers must inform the agency when its warning labels, copied from the brand-name label, do not account for newly discovered risks. Often generic manufacturers will know of such risks because more people take generic drugs and because they come on the market later than brand-name drugs, which offers more time to assess side effects. In this case, the risks stemmed from taking Reglan, a drug that caused a severe and irreversible neurological disorder as a side effect in a growing number of patients.

The majority concluded that it was impossible for generic-drug makers to meet both the federal requirement that they copy brand-name labels, and state law duties to provide adequate warnings, and therefore gave no effect to FDA’s position that the generic drug makers should have taken steps to warn the agency of the problems with Reglan. The majority acknowledged that, from the perspective of plaintiffs, its ruling “makes little sense.”

In the dissent’s view, the generic-drug makers should not have been permitted to claim “impossibility” because they never even attempted to warn the FDA that the newly-discovered risks of Reglan were not included in the brand-name or generic warning labels for the drug. It is implausible that the FDA would not have asked the brand-name manufacturer, and by extension the generic makers, to change labels if the defendants had warned the agency of adverse effects. It is equally implausible that Congress intended to protect only consumers of brand-name drugs while leaving users of generic drugs without recourse.

In a cruel twist, the plaintiffs received the generic version of Reglan only because their pharmacist substituted it for the brand-name drug their doctors prescribed. Had they received the brand-name version, they would have at least been able to sue because of the greater duties of brand-name drug manufacturers. Instead, the Corporate Court’s decision leaves them with no remedy.

PLIVA v. Mensing is number six on the Worst Decisions of the 2010-11 Corporate Court term because it gives generic-drug manufacturers a free pass to sit back and do nothing when their warning labels are dangerously inadequate.

Worst Decisions, #7: Ashcroft v. al-Kidd

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #8, we talked about J. McIntyre Machinery v. Nicastro, which protected foreign corporations from accountability when their products cause harm.

Worst Decisions of the 2010-11 Corporate Court Term: #7 Ashcroft v. al-Kidd
Giving the Seal of Approval to Harsh Imprisonment of Americans under False Pretenses

The Supreme Court threw out a lawsuit brought against former Attorney General John Ashcroft by Abdullah al-Kidd, an American citizen who was detained for 16 days in harsh conditions.

Al-Kidd was accused of no crime and responded with full cooperation to several FBI requests for information.  Nonetheless, federal law enforcement, which had no intention of obtaining testimony, detained al-Kidd using a material witness warrant supported by an affidavit that included several falsehoods and omissions. As a result, al-Kidd was held in a cell that was lit 24 hours a day and was subjected to strip searches, body cavity searches, and shackling of his wrists, legs, and waist.

All eight justices who heard the case held that Ashcroft was entitled to qualified immunity because there was no “clearly established” law stating that using a material witness warrant in the way he used it was illegal.  Nonetheless, Chief Justice Roberts and Justices Scalia, Thomas, and Alito sought to go even further.  They stated conclusively that Ashcroft’s actions were lawful despite the federal government’s use of false and misleading information to obtain the warrant.  For example, law enforcement stated that al-Kidd purchased a first-class one-way ticket to Saudi Arabia instead of the coach round-trip ticket he actually purchased.  Law enforcement also did not tell the magistrate that they had no intention of asking al-Kidd to testify or that his entire family lived in the United States, where he was born and raised.

Justice Ginsburg, in an opinion concurring in the judgment that was joined by Justices Breyer and Sotomayor, described the Court’s assumption as “puzzling.”  Citing the omissions and falsehoods used to obtain the warrant, she added that “there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason to conclude that a merits determination (that Ashcroft acted lawfully) was neither necessary nor proper.”

Ashcroft v. al-Kidd is number seven on AFJ”s Worst Decisions of the Corporate Court Term because it denied justice to an American citizen who suffered profound harm at the hands of his government and because the leading four-person opinion needlessly approves deceptive tactics used to unfairly arrest of innocent Americans.  

Senate Confirms Two District Court Nominees

On Tuesday, the Senate confirmed John Andrew Ross to the United States District Court for the Eastern District of Missouri by unanimous consent and Timothy M. Cain to the United States District Court for the District of South Carolina by a vote of 99-0. The vacancies they will fill have been designated judicial emergencies by the Administrative Office of the U.S. Courts.

Despite the emergency status of the seats and the unanimous affirmation of the nominees by the Senate, it has taken 294 days from the date of his nomination to last night’s vote for Ross to be confirmed, and 217 days for Cain.

The Senate took no action on 27 other judicial nominees currently pending on the Senate floor, 26 of whom were reported out of committee either unanimously or with strong bipartisan support. There are now 112 current and future vacancies in the federal judiciary—1 in 7 judgeships—only 2 fewer than there were at the beginning of the current Congress.

Worst Decisions, #8: J. McIntyre Machinery v. Nicastro

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #9, we talked about Sorrell v. IMS Health, which gives corporations a First Amendment right to use private medical information to market expensive drugs.

Worst Decisions of the 2010-11 Corporate Court Term: #8 J. McIntyre Machinery v. Nicastro
Protecting Foreign Corporations from Accountability When Their Products Cause Harm

The Corporate Court ruled 6-3 in this case against Robert Nicastro, a man who lost four fingers when his hand was caught in an industrial cutting machine he used at his job in New Jersey.  Nicastro claimed that the machine was missing an important safety guard that could have prevented the injury.  The Court ruled that a New Jersey state court could not even hear Nicastro’s negligence claim against J. McIntyre Machinery, the machine’s England-based manufacturer.  The majority held that the state court lacked jurisdiction over the company because J. McIntyre had not engaged in conduct that was purposely directed at the New Jersey market. 

J. McIntyre had an exclusive American distributor that it hoped would sell to every region of the United States.  Nicastro’s employer purchased the machine that injured him at a trade show in Las Vegas.

Justice Ginsburg’s dissent argued that J. McIntyre should not be granted a free pass to avoid liability in every state court in the United States merely because it directed its distributor to attract customers “from anywhere in the United States.”  J. McIntyre UK’s president described the company’s strategy in the following way: “All we wish to do is sell our products in the [United] States—and get paid!”  Ginsburg argued that “[t]he machine arrived in Nicastro’s New Jersey not randomly or fortuitously, but as a result of the U.S. connections and distribution system that McIntyre UK deliberately arranged.”  The dissent contrasted what Nicastro was asking of J. McIntyre with what the majority was now requiring of Nicastro.
On what measure of reason and fairness can it be considered undue to require McIntyre UK to defend in New Jersey as an incident of its efforts to develop a market for its industrial machines anywhere and everywhere in the United States?  Is not the burden on McIntyre UK to defend in New Jersey fair, i.e., a reasonable cost of transacting business internationally, in comparison to the burden on Nicastro to go to Nottingham, England to gain recompense for an injury he sustained using McIntyre’s product at his workplace in Saddle Brook, New Jersey? 
J. McIntyre Machinery v. Nicastro is number eight on AFJ’s Worst Decisions of the Corporate Court Term because the Court ensured that many individuals who are harmed by defective products made by foreign manufacturers will be denied access to justice even when the manufacturers are intentionally profiting from U.S. consumers.

AT&T Aftermath: Companies Get to Judge Their Own Compliance with Wage Law

The Corporate Court's decision in AT&T Mobility v. Concepcion set a dangerous precedent, and is forcing everyday Americans out of the courthouse. AFJ takes a look at some of the cases impacted by the decision.

Case: Quevedo v. Macy’s, Inc.

Carlos Quevedo worked at a Macy’s in California.  When he was terminated, Macy’s did not promptly pay him his final wages as required by state labor law.  Quevedo filed a lawsuit on behalf of himself and all other victims of Macy’s practices.  But Macy’s required all new employees to agree to use its so-called “InSTORE” dispute resolution program, which culminates in binding arbitration proceedings and requires workers to waive any right to form a class.  The court brushed aside Quevedo’s argument that the arbitration clause was unconscionable, and ruled that, after Concepción, Quevedo could not even use California’s Private Attorney General Act, a law which lets citizens stand in the shoes of state law enforcement officials, to take Macy’s to court for its illegal practices.

Click here for more on the aftermath of the Court's AT&T decision.

Jordán, Four District Court Nominees Get Committee Hearings

The Senate Judiciary Committee today held hearings on the nominations of Adalberto José Jordán to the United States Court of Appeals for the Eleventh Circuit and of John M. Gerrard, Mary Elizabeth Phillips, Thomas Owen Rice, and David Nuffer to serve as United States District Judges in the District of Nebraska, the Western District of Missouri, the Eastern District of Washington, and the District of Utah, respectively.

If confirmed, Jordán and Nuffer will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U. S. Courts.  During their testimony, both Nuffer and Gerrard spoke of the difficulties people are having accessing justice due to increasing court caseloads and insufficient personnel and other resources.  Senator Amy Klobuchar (D-MN) presided over the hearings; also in attendance were committee members Senator Orrin Hatch (R-UT) and Senator Mike Lee (R-UT).

With 113 vacancies in our federal courts, 37 of them judicial emergencies, the Senate should move swiftly to take action to put these nominees on the federal bench. 

For the most up-to-date and comprehensive information on judicial nominations, download the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary June–August 2011: Judicial Nominations in the 112th Congress.

Coming down from the summit

I attended Bisnow's Second Annual Real Estate Summit at the InterContinental Hotel this morning. It was a packed house, with a lot of familiar faces and some great speakers, including Steve Fifield, Mike Reschke, Gerry Nudo and the keynote speaker, Neil Bluhm. (Hearing Bluhm speak is a big deal to many of the real estate cognoscenti, because he does not appear as frequently on the scene as a Sam Zell or a Donald Trump, even though he is also a billionaire and every bit as savvy.)

What did I learn that I can pass on to you, along with my thoughts? (I am intentionally not attributing comments to any speaker here.)
  •  Several panelists don't see any turnaround here in commercial real estate until at least 2013. 
  • Lenders are dying to replaced paid off capital with new loans. I'm not seeing as much of that.  But I am seeing life that didn't exist before either.  I guess lenders and borrowers have different perspectives too.
  • If a bank is asking for more money or capital, it is probably to increase the bank's rating of the loan so it can retain fewer reserves with respect to that loan.
  • If your lender isn't calling you every week to do deals.... (Really?)
  • Somewhat contradictorily, lenders are looking for construction loans to do, but then they don't really want any risk on the deal over $25 million, and they also do not want to be participants in someone else's loan unless goodies can be spread around.
  • This is a once in a lifetime opportunity to do low interest, ten year deals with insurance companies, and you should do everything you can to get your LTV to a point where you can do those deals.  Moreover, when you need to discuss something to the lender someone is actually there who can listen.
  • CMBS spreads are not changing any time soon.
  • Casino financing can be difficult because many lenders do not understand the difference between local/regional casinos and Las Vegas.  Local operations are finite in terms of licensing and people go there like they would to a sporting event, while Vegas is an event, with virtually unlimited licensing and travel costs. That is why Vegas was hurt so bad in this recession.
Don't miss this one next year! This is one of the best real estate sessions I have attended.

Worst Decisions, #9: Sorrell v. IMS Health

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #10, we talked about Schindler Elevator v. United States, which protects corporations who cheat American taxpayers.

Worst Decisions of the Corporate Court Term: #9: Sorrell v. IMS Health
Giving Corporations “Free Speech” Rights to Profit from Medical Records  

In the spirit of Citizens United, the Corporate Court again created expansive “free speech” rights for corporations at the expense of everyday Americans.  Data mining corporations use prescription information that doctors are required by law to collect to target those doctors with sales pitches about various drugs.  Vermont restricted pharmacies from selling such information without the individual doctor’s consent.  Research shows that such marketing affects doctors’ prescribing habits, which forces patients to buy expensive versions of medication over less expensive and equally effective alternatives.

Vermont argued that the pharmacies do not have an unfettered right to use the records as they wish, and noted that the Supreme Court has held that when the government compels production of otherwise private information, it may restrict further use of that information.  Indeed, limits on the use and disclosure of medical records are widely accepted speech restrictions.

In a 6-3 vote, the Corporate Court held that Vermont illegitimately burdened the corporations’ free speech rights and that the statute will have to survive strict scrutiny, a heightened standard that typically results in laws being overturned.

As Justice Breyer noted in his dissent, “[n]othing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process.”  The statute only seeks to prevent corporations from using for marketing purposes information that doctors are required to collect about their prescriptions.  Nonetheless, the Court held that the corporations deserve the same heightened First Amendment protection to use private medical data to pad their profits that everyday Americans receive when voicing their opinions about public issues.       

Sorrell v. IMS Health is number nine on AFJ’s Worst Decisions of the Corporate Court Term because it grants corporations a First Amendment right to use private medical information against the wishes of doctors to market expensive drugs to those doctors.   

Counting Down the Worst Decisions of the Corporate Court's 2010-11 Term

This was another very good year for corporate interests at the U.S. Supreme Court, and a very bad one for Americans seeking fairness and justice.

The Corporate Court under Chief Justice John Roberts is radically reshaping the law to insulate corporations from accountability for conduct that discriminates against, defrauds, or injures everyday Americans. In several cases, the five conservative justices were able to force those suffering from corporate malfeasance into arenas where they have to face powerful corporate opponents alone, while ensuring that big business doesn't have to face unified groups of those it has harmed.

Collectively, these decisions could be worth tens of billions of dollars to corporate bottom lines.

Over the next 10 days, AFJ will highlight 10 of the worst decisions of the Corporate Court's 2010-11 term.

#10: Schindler Elevator v. United States ex rel. Kirk

A 5-3 majority (Justice Kagan recused) protected companies that defraud the federal government by narrowing the types of lawsuits whistleblowers can bring to recoup corporate ill-gotten gains.

The case was brought by Daniel Kirk, a Vietnam veteran who suspected that his employer, Schindler Elevator Corp., had illegally accepted a large federal contract while lying about establishing a veteran-assistance program that the contract required. Kirk confirmed those suspicions after examining documents his wife received in response to a Freedom of Information Act request.

Whistleblowers like Kirk who uncover fraud against the federal government can sue under the False Claims Act on behalf of the United States and be awarded a portion of any recovery the government receives from the lawsuit. Indeed, of the nearly $30 billion in damages that have been recovered under the False Claims Act since 1987, 60 percent originated from suits initiated by private individuals. The Department of Justice regards these suits by individuals as "[o]ne of the powerful tools in the effort" to combat fraud. However, individuals cannot sue if the lawsuit is based upon information in a government "report" because, arguably, that information is already known by the government and does not depend on the wistleblower for its discovery.

This case turned on whether the loose documents produced in response to Kirk's FOIA request were a government "report." To find that they were, as the five conservative justices did, let Schindler Elevator's fraud off the hook. The opinion ignored what "report" meant in the context of the relevant statute -- as the results of an investigation -- and inexplicably looked to the dictionary instead. What logic is there in blocking whistleblower lawsuits when the government has no idea that corporate fraud is occurring?

Justice Ginsburg's dissent stated that the ruling "weakens the force of the [False Claims Act] as a weapon against fraud" and "severely limits whistleblowers' ability to substantiate their allegations."

Schindler Elevator v. United States ex rel. Kirk is number 10 on our list of Worst Decisions of the Corporate Court Term because it protects corporations who cheat American taxpayers.

AT&T Aftermath: Sleazy Employment Contract Uses Arbitration to Escape Paying Minimum Wage

The Corporate Court's decision in AT&T Mobility v. Concepcion set a dangerous precedent, and is forcing everyday Americans out of the courthouse. AFJ takes a look at some of the cases impacted by the decision.

Case: D’Antuono v. Service Road Corp. 

Dina D’Antuono was an exotic dancer at a club in Connecticut.  She and other dancers, after working for a few months, were taken aside during a shift and told they needed to sign a contract.  It said the dancers weren’t entitled to minimum wage and worked only for tips.  It also contained an arbitration clause that banned class actions, shifted fees onto losing plaintiffs, and imposed a six-month time limit on filing claims.  D’Antuono sued the club owners under the Fair Labor Standards Act to recover wages she and other dancers were owed.  Citing Concepción, the judge ruled that it didn’t matter whether or not the dancers would, as a practical matter, be able to vindicate their rights through arbitration, and threw the case out of court.

Click here for more on the aftermath of the Court's AT&T decision.

Four Judicial Nominees Voted Out of Committee

Today the Senate Judiciary Committee voted four judicial nominees out of committee in a unanimous, en banc vote, moving them forward to the full Senate for confirmation.  Consideration of all four had been “held over” last week by Republicans on the Judiciary Committee, even though one of the nominees, James Rodney Gilstrap, would be filling a vacancy on the federal bench of the Eastern District of Texas that has been named a “judicial emergency” by the Administrative Office of the U.S. Courts.  Holding over nominees, even when there is no opposition to their appointment, has been a consistent tactic by Republican senators seeking to slow down the judicial confirmation process. The other three nominees who were advanced out of the committee are Edgardo Ramos, Andrew L. Carter, Jr., and Jesse M. Furman, all to seats in the Southern District of New York.

For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judiciary June–August 2011: Judicial Nominations in the 112th Congress.

43 Members of Congress Call for Hearings on Supreme Court Ethics Reform

Today, Congressman Chris Murphy and 42 of his colleagues called on the House Judiciary Committee to hold hearings on the need for Supreme Court ethics reform. Their open letter to committee leaderhsip noted that the alarming behavior of some justices, such as attending political events and fundraisers, “undermine the integrity of the entire judiciary, and they should not be allowed to continue.”

The House members urged the House Judiciary Committee to hold a hearing to consider the Supreme Court Transparency and Accountability Act, which would require Supreme Court justices to follow the same ethical rules as all other federal judges, and reform the Court’s recusal process. The full text of the House members’ letter is available here.

In March, AFJ President Nan Aron joined with Congressman Murphy to announce the Supreme Court Transparency and Accountability Act. Since then, the issue has continued to draw public and media attention.

Eric Lichtblau of the New York Times Caucus Blog has this on today's Dear Colleague letter. The letter is the latest in mounting calls for Supreme Court ethics reform. As Lichtblau notes:
The notion of imposing higher ethics standards on the Supreme Court appears to be gaining momentum among House Democrats and outside legal scholars, but its prospects in the Republican-controlled House are still uncertain.
Calls for ethics reform have increased as more and more accounts of ethically questionable conduct by some of the justices continue to be revealed. The NYT Caucus Blog reported that:
Justice Thomas has received the most recent scrutiny not only for his appearances before Republican-backed groups, but also for his acceptance of favors from a prominent conservative contributor in Texas, Harlan Crow, and his wife’s work as an advocate for conservative legal causes.
Alliance for Justice has been a leader in calling for Supreme Court ethics reform. AFJ’s upcoming film A Question of Integrity: Politics, Ethics, and the Supreme Court, narrated by actor, director, and activist Edward James Olmos, will explore the increasing politicization of the Court, and calls on viewers to support changes to help protect public confidence in the Court. Click here to learn more about Supreme Court ethics reform.

President Obama Makes 2 New Nominations

President Obama has nominated Stephanie Dawn Thacker to the United States Circuit Court for the Fourth Circuit and Gregg Jeffrey Costa to the United States District Court for the Southern District of Texas. Ms. Thacker would fill the seat left open by the death of Judge Michael, and Mr. Costa would fill a judicial emergency seat created when Judge Rainey took senior status. Ms. Thacker is currently a practicing attorney and adjunct professor of law specializing in complex litigation, environmental and toxic tort litigation, and criminal defense. From 1994-1999 she served as an Assistant United States Attorney, taking part in the first prosecution in the nation under the Violence Against Women Act. She worked for the Department of Justice at the Child Exploitation and Obscenity Section from 1999-2006, focusing on issues related to sex trafficking, sex tourism, child sexual exploitation and related matters. Mr. Costa has served as an Assistant United States Attorney in the Southern District of Texas since 2005. He clerked for Chief Justice William Rehnquist from 2001-2002 after serving for a year as a Bristow Fellow at the Office of the Solicitor General in the United States Department of Justice. Before entering law school, he was a school teacher in Mississippi through the Teach for America program.

With these nominations, there are now 57 nominees pending for the 113 vacancies in the federal judiciary. For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.

Senator Grassley Denies Republican Obstructionism, But Ongoing Judicial Vacancies Tell the Real Story

Refusing to accept responsibility for repeated Republican measures to halt judicial appointments, Senator Chuck Grassley (R-IA) continues to cast blame for the nation’s ongoing judicial deficits everywhere but on the shoulders of the GOP. Even after the White House issued an infographic that clearly shows Republican obstruction of judicial nominees, Senator Grassley has refused to back down from his claims. Grassley claims, for example, that President Obama’s circuit and district court nominees have waited, on average, less time to receive Senate Judiciary Committee hearings and be reported to the Senate floor than President Bush’s comparable nominees.

The problem with Senator Grassley’s numbers is that they miss key points. In the first two years of the Obama presidency, the Senate confirmed a smaller percentage of the president’s nominees – 58 percent – than any president in history. This inaction on nominations – inaction that is a direct result of reflexive and repeated delay tactics by Republicans – caused the number of judicial vacancies to nearly double over the two year period, going from 55 to 97. For further information, see AFJ's special report, The State of the Judiciary: President Obama and the 111th Congress.

Today, there are 113 federal judicial vacancies. Despite Senator Grassley’s claims that Republicans in the 112th Congress are allowing nominations to move forward, that number is virtually the same as the day the Senate session began in January, when the number of empty seats in federal courtrooms was 114, leaving 1 in 7 federal judgeships vacant. Thirty-seven of these vacancies have been declared “judicial emergencies” by the Administrative Office of the U.S. Courts. Despite the severe judicial deficit in the courts, only 34 of the president’s 90 nominees have been confirmed this year, and the overall confirmation rate for the president’s judicial appointments stands at 62 percent, significantly less than the 74 percent confirmed by this point in President George W. Bush’s first term and the 84 percent during the first term of President Bill Clinton.

All but four of President Obama’s nominees have been automatically held over in committee, a partisan strategy that stretches out the period from nomination to confirmation by weeks or, when the Senate goes on vacation, months. Senate Judiciary Chairman Patrick Leahy (D-VT) notes that even candidates coming out of committee without any opposition are being left in limbo for months more as Senate Republicans employ all possible means of preventing floor votes on their appointments.

There are currently nineteen pending judicial nominations awaiting a final vote on the Senate floor. Half of them have been awaiting a vote for over two months, even though all but four were unanimously supported by the Judiciary Committee.

Getting judges on the bench is an end-sum game; until nominees are voted on by the Senate, they cannot take their places in the courtrooms and judicial system of the nation. What is needed is an end to partisan gamesmanship and full Senate action to fill vacancies on the bench so that everyday Americans can seek, and be granted, justice in our courts.

Wallach, Four District Court Nominees Get Senate Judiciary Committee Hearings

On Wednesday, the Senate Judiciary Committee held hearings on the nomination of Evan Wallach to the United States Court of Appeals for the Federal Circuit, and of Dana Christensen, Cathy Bencivengo, Gina Marie Groh, and Margo Brodie to serve as United States District Judges in the District of Montana, Southern District of California, Northern District of West Virginia, and Eastern District of New York, respectively.  Senator Sheldon Whitehouse (D-RI) presided over the hearings; also in attendance were Senator Chuck Grassley (R-IA) and Senator Al Franken (D-MN).

Following a smooth hearing, the nominees were commended by both Senators Whitehouse and Grassley, with the latter noting that he did not see any reason why their confirmations should be opposed.

With 113 vacancies in our federal courts, 37 of them judicial emergencies, the Senate should move swiftly to take action to put these nominees on the federal bench.  For the most up-to-date and comprehensive information on judicial nominations, see the Alliance for Justice’s Judicial Selection Snapshot and The State of the Judicary June–August 2011: Judicial Nominations in the 112th Congress.

A Notable First: Republicans Allow Judicial Nominee Without Automatic Delay

Today, for the first time in the 112th Congress, the Republicans on the Senate Judiciary Committee allowed a judicial nominee to be reported to the floor without being “held over” until the next time the committee convenes. The practice of holding over nominees, especially those for whom there is no Republican opposition, is a way to delay the judicial confirmation process. Republican senators have engaged in this practice systematically for every nominee, even as judicial vacancies have reached crisis proportions, and regardless of whether the nominee would fill one of the dozens of seats the Administrative Office of the U.S. Courts has declared “judicial emergencies.”

Jennifer Guerin Zipps, a nominee to the United States District Court for the District of Arizona is the first nominee to receive this treatment by Senate Republicans. Ms. Zipps has been nominated to fill the seat that tragically became vacant when Chief Judge John Roll was among the six people killed in the January shooting that targeted Congresswoman Gabrielle Giffords (D-AZ). Certainly the suddenness and urgency of this vacancy is reason enough to move her nomination rapidly through the Senate, but another nomination considered today did not receive such conscientious treatment, even though the nominee would also fill a judicial emergency: James Rodney Gilstrap, nominee to the Eastern District of Texas.

If Republicans in the Senate cared about Americans receiving timely consideration of their cases in the federal courts, they would drop their practice of automatically holding over judicial nominees, and help address the ongoing judicial vacancy crisis.

Let's get new homes built -- not

So, now I read the Department of Labor is investigating several major home builders. Why?

A copy of one letter, dated Aug. 1 and reviewed by The Wall Street Journal, said the department was opening a probe under the Fair Labor Standards Act, which governs matters such as overtime pay and limits on using teen workers.
The letter instructed the home builder to immediately turn over the names, addresses, Social Security numbers, pay rates and hours worked for all employees over the past two years. It asked the names of all contractors hired in the past year. The letter didn't allege any specific violations of law.
I guess we'll see how this plays out.  I try hard not to get into the political side of these things, so I will not do so here.  Whether I agree or disagree with this is immaterial, because I can honestly see both sides of the issue.  But I WILL say that this is not going to get any new homes built, though.  And that's not good.

AT&T Aftermath: For-Profit College Misleads Potential Students

The Corporate Court's decision in AT&T Mobility v. Concepcion set a dangerous precedent, and is forcing everyday Americans out of the courthouse. AFJ takes a look at some of the cases impacted by the decision.

Case: Bernal v. Burnett

Krystle Bernal enrolled in Westwood College Online’s fashion merchandising program in 2005. In 2010, she and others filed a lawsuit against Westwood based on misrepresentations made in high-pressure sales pitches by “academic counselors,” including the total cost of education at the school, the job and salary expectations for graduates, the accreditation of the school, and the transferability of credits. The school’s enrollment documents, however, contained an arbitration clause with a class action ban. Bernal argued that the nature of the fraud claims and the need for testimony by company insiders made repeated individual trial or arbitration of the case totally impractical. The judge observed that while Concepción dealt “a serious blow to consumer class actions and likely foreclosed the possibility of any recovery for many wronged individuals,” the court was bound by the Supreme Court’s ruling that forced arbitration contracts are valid regardless of public policy implications.

Click here for more on the aftermath of the Court's AT&T decision.

Bernice Donald Confirmed to Sixth Circuit

This evening the Senate confirmed Bernice Donald to the Sixth Circuit Court of Appeals by a vote of 96-2, with Senators Vitter (R-LA) and DeMint (R-SC) voting no. Judge Donald was previously a United States District Judge in the Western District of Tennessee. She has been a federal judge for more than 20 years, and has almost 30 years of judicial experience. She was elected to her first judicial position as a judge in the criminal division of the Court of General Sessions in Shelby County in 1982, making her the first female African-American judge in Tennessee history. She also became the nation’s first female African-American bankruptcy judge in 1988.

Judge Donald is the first circuit court nominee to be confirmed in 4 months. There are now 19 nominees awaiting confirmation on the Senate floor.

For the most up-to-date and comprehensive information on judicial nominations, visit the Judicial Selection Project webpage.