Understanding Preemption in Plain English

March 5th, 2010. By Kristine B

Over the last year or so, there’s been some discussion in the media about “preemption.” So, I thought I’d take this opportunity to explain preemption and why it’s important (specifically, why and how it affects you). 

In legal-speak, preemption is based on the Supremacy Clause of the US Constitution. That clause states that some matters are of national importance rather than local importance. In those matters, national (federal) law must take precedence over state laws. Furthermore, states cannot pass laws that are inconsistent with the federal law. Preemption extends downwards as well, so that state law takes precedence over community law. 

Ok—let’s give a completely unrealistic and ridiculous example to simplify things here. Let’s say our friends in Washington DC decide that Wednesdays should be “Wear Red” day—kind of a “have heart” or weekly AIDS Awareness thing. Now let’s also suppose that some state actually bans wearing red on Wednesdays. Whoops—would seem to be a problem here, right? Ahh, but with preemption, federal law could “preempt” state law and you could look forward to viewing a sea of red every Wednesday. 

Now, this happens where the matter is of national importance. Not every law is subject to preemption. Also, there are situations in which state and federal laws are similar and do not entirely contradict each other, leaving questions about which laws should be followed. 

For example, not all states have the same employment laws. There’s a federal law, called the Fair Labor Standards Act (FLSA) that sets out employee wages and hours worked. However, many states have laws that overlap with the FLSA and also set out wage and hour regulations. In those situations, it is not Read the rest of this entry »

Asbestos News Roundup: 3.4.10

March 4th, 2010. By LucyC

A roundup of recent asbestos-related news and information that you should be aware of. 

Asbestos Lawsuits

Kanawha County, WV: CSX Transportation is facing an asbestos lawsuit filed by three women, two of whom allege they lost immediate family members as a result of asbestos exposure, and a third woman who claims she developed asbestosis and lung cancer while working for CSX. 

Crystal Morris claims that her father, Stuart McQuan, who died of asbestos lung cancer, developed the deadly disease as a result of exposure to asbestos on the job. Similarly, Pamela Geary’s husband, Virgil Floyd Geary, died of lung cancer resulting from asbestos exposure.

The third woman, Donna Barber, worked for CSX and claims the she was exposed to asbestos on the job, which has resulted in her developing asbestosis and lung cancer (Mesothelioma.com)

Jefferson County, TX: The representative of Jimmy Brumley’s estate has filed an asbestos lawsuit naming 49 companies as defendants. The suit claims that Brumley developed asbestos-related lung disease as a result of his work as a union insulator from 1953 to 1998 when he retired, and that the defendant companies did not warn Mr. Brumley of the dangers of working with asbestos products. 

The defendants named in the suit are: Azko Nobel Polymer Chemicals, Akzona Inc., Alcoa Inc., American Cyanamid Co., Ametek, AMF Incorporated, Anco Insulations, Ashland Oil, Atlantic Richfield, BP America, BP Products North America, Branton Insulations, CBS/Viacom/Westinghouse, Celanese, Champlain Cable Corp., Citgo Petroleum Corp., Columbian Chemicals Co., Conocophillips Co., Crown Central, CSR Ltd., Dow Chemical Co., E.I. Dupont De Nemours and Co., EA Development and Eagle Inc.

Also named are: ELF Aquitaine, Entergy Gulf States Louisiana, Exxonmobil, Foster Wheeler Energy Corp., Read the rest of this entry »

A Settlement, a Verdict and a Judgment walk into a bar…

March 4th, 2010. By Kristine B

(Let me preface this by saying this isn’t a legal joke—more of a little vignette. My apologies to those of you “legal purists” out there…this is Pleading Ignorance and it’s for the rest of us lay folk.) Back to the story…

After a few drinks, a hot chick (I’m a woman, so I can write that) walks up; seems she’s looking for romance—and a husband.

She approaches the Verdict first. He’s game, but he has to ask his mother first—he’s a momma’s boy at heart and momma’s the judge. She doesn’t have time for that, so she heads over to the Judgment. They chat a bit, but then she realizes he may want to bail early on—he wants to keep his options open—and she’s wanting more of a final commitment—no chance of an appeal, so to speak. So she starts chatting up the Settlement. She likes that he sounds like he’s “settled” and he’s upfront about things—no baggage—he hasn’t been through the rigmarole. Yup, the Settlement’s her guy. She buys him a drink, and off they go into the sunset.

Love story though it may be, I use the above bit of fiction to describe three legal terms that are often used interchangeably—and incorrectly so: Settlement, Verdict and Judgment.

So let’s do some ‘splaining.

What is a Settlement?

You hear a lot about settlements because, hands down, they win the popularity contest when it comes to lawsuit outcomes. Why? A few reasons. First, they happen before anyone actually goes to trial—so you avoid the possibility of a case being dragged on and on as it goes through the courts. Secondly, as a settlement arises from negotiation, both parties must agree to the terms of the settlement—and that includes the dollar amount of the settlement and terms of the settlement such as whether or not the amount of the settlement is confidential. And third, a settlement is final—there’s no Read the rest of this entry »

Blimpie’s, Seagram’s and the IKEA Kitchen: Tortelicious Goes Foodie

March 4th, 2010. By LucyC

Welcome to Totally Tortelicious—a review of some of the more bizarre lawsuits making news. Goodness knows there’s no shortage of them.  

C’mon, You Call that Stacked?

So here’s a skill-testing question—when is not enough simply too much? 

The answer—when you’re not getting what you paid for. At least that’s how a couple of folks from Illinois see it, so they’re suing Blimpie.

Yes, Blimpie is being sued for fraud over its Super Stacked subs. The rub? The sandwiches don’t contain the amount of meat they’re supposed to. The suit is based on nutritional information, apparently. Here’s the math: a regular 12 inch Blimpie Best has 50 grams of protein, but a 12 inch “Super Stacked,” which is advertised to have double the meat, has only 73 grams of protein—that’s if you only count the meat.

If you count the cheese (the kind you eat), there’s 10 grams of protein (based on a double serving) but, I guess that’s just not the same if you’re a meat lover. 

It’s the first time I’ve heard of a super stacked failing to satisfy… 

Puhlease…That Kitchen is so Off-the-Rack. It appears that, contrary to real estate’s golden rule #1, not all kitchen renovations can add value to your property, and in some cases may even land you in court. Last week a “wealthy Icelandic couple” was sued for installing an “ugly kitchen” in their up-market rental apartment at the Gramercy Park Hotel in Manhattan. Guess what—it was an Ikea kitchen…oops. Time to cringe: they even have how-to-install vid’s on youtube—ouch!

I was under the impression that ‘ugly’ and ‘attractive’ and all esoteric values in between were strictly a matter of individual taste—beauty is in the eye and all that. But no, apparently not.

At least not according to the kitchen Nazis—or would they be design Nazis? The lawsuit reportedly claims the kitchen was unsuitable for such a luxurious home. What does that mean? Laminate was used instead of stone? MDF instead of Mahogany? $30k instead of $150K?

I guess the courts will have to define “unsuitable for such a luxurious home,” unless of course the ad men for Ikea can beat them to it…my money is on the ad men. 

Ok…Who’s been Slingin’ back the Seagram’s with the Psychic? And continuing on in the ‘spirit’ of the bizarre…The heiresses to the Seagram liquor fortune, Clare and Sara Bronfman, filed suit against their former financial planner recently, over allegations that she divulged their personal financial information and other confidential information to lawyers and media outlets, as a retaliatory act. Thing is, the financial planner apparently obtained most of the information from a psychic.

The obvious question is, how competent was this financial planner if she had to go to a psychic to find out what was going on with her clients? Or, who’s been blabbing about their finances to the psychic in the first place? Hell, I’m all for psychics, but seriously, is this one that good? I’m thinking all these folks have consumed a little too much of the house kool-aid.

Parents: Is your Kid on Isotretinoin? (aka Accutane)

March 3rd, 2010. By AbiK

Yes, Roche stopped selling acne drug Accutane back in June 2009. But that was a decision made by that company—not the FDA. And, that decision was made (insert raised eyebrow here) for “business reasons”—not for any safety issues. Ahh, but here’s the thing… those “business reasons” included competition from generics. And guess what? You can still get those generics. Other than Accutane, isotretinoin is sold as Sotret, Claravis and Amnesteem.

I imagine a number of parents of acne-ridden teens breathed a sigh of relief when Roche stopped marketing Accutane. After all, what parent wants to consider putting their teenage daughter on some form of guaranteed contraception in order to be put on a drug proven to cause birth defects just so they can clear up their zits? Beyond that, reports of depression, suicidal thoughts, possible gastrointestinal problems—and labelling that also warns of a potential sudden decrease in night vision (mom, can I have the keys to the car?)—don’t exactly add up to a drug you want your child on.

But let’s face it, internet-savvy teens have no problem beating the system and finding ways to order isotretinoin online—particularly when the promise of clear skin in on the line. Enter a recent study published in the Journal of American Academy of Dermatology (January 2010) titled Availability of Oral Isotretinoin and Terbinafine on the Internet.

The study, by Jason P. Lott and Carrie L. Kovarik, MD, looks at the proliferation of websites that sell certain medications without a prescription—specifically dermatologic medications. In their study of websites readily found via Google search, they categorized the websites into four groups: Illicit Commercial (those that offered purchase without a prescription); Legitimate Commercial (US licensed pharmacies requiring prescriptions); Informational (those offering only information, not sale); and Other for those not fitting into the other above categories.

What did they find? For their search on “no prescription Accutane”, 66% of the sites returned on search were categorized as Illicit Commercial. Translation: you could buy Accutane from them without a prescription.

Lott and Kovarik state that they did not go through and actually purchase any oral isotretinoin via the sites they studied—so it’s not certain that the medications would actually be received or if they would be authentic. That said, the authors of the study indicate that the US Government Accounting Office (GAO) reports that 94% of all online opioid purchases result in delivery of the drugs as advertised.

If the GAO report is true, I’d be checking my kid’s backpack.