The Justice Department may soon reveal the details of a criminal settlement with GM over its failure to recall vehicles with defective ignition switches. The deal will require GM to plead to wire fraud and pay a penalty of approximately $1 billion. “GM is expected to enter a deferred prosecution agreement under which the government will eventually seek to dismiss the case if the company abides by the deal’s terms, according to the people familiar with the matter.” Corporations, even though they are not natural persons, can be found guilty of crimes and be fined.
The claim is over the ignition switch, which can slip out of the run position and disable airbags, power steering, and brakes. The Justice Department alleged GM failed for over a decade to warn drivers of the safety issue even though GM knew about the problem. In one estimate, more that 100 people died and more than 200 were injured as a result of the switch failing.
A federal court has ruled that the House of Representatives, collectively, has standing to sue the Executive Branch over a provision in the Obama-care legislation dealing with cost-sharing subsidies. These subsidies are intended to help lower income people with their deductibles and co-pays. “Many legal observers expected the lawsuit to fail on standing: that Congress wouldn’t be able to show a way in which the Obama administration had harmed legislators, a prerequisite for a court challenge.”
House Republicans argue these subsidies are being illegally paid by the Treasury to insurers and claims the House “never appropriated” the funding. The House alleges it “has been injured, and will continue to be injured, by the unconstitutional actions of defendants . . . which, among other things, usurp the House’s legislative authority.”
Courts hear cases and controversies, and unless a plaintiff has sustained some type of injury, courts cannot take the case and will dismiss it for lack of standing. But here, the court found the House has standing to sue because they are allegedly harmed as an institution, not as individual members. The court held, “The Congress is the only body empowered by the Constitution to adopt laws directing monies to be spent from the U.S. Treasury. . . . Yet this constitutional structure would collapse, and the role of the House would be meaningless, if the Executive could circumvent the appropriations process and spend funds however it pleases. If such actions are taken . . . the House as an institution has standing to sue.”
Fox News’ Harris Faulkner, co-anchor of the daytime show Outnumbered, sued Hasbro toy company for $5 million. Hasbro sold a toy hamster named the “Harris Faulkner Hamster Doll” as part of their “Littlest Pet Shop” product line.
In the complaint, Faulkner alleges unfair competition under the Lanham Act and common law violation of right to publicity. She claimed she is “distressed” that her name would be associated with a toy that indicates it could be a potential “choking hazard” to children, and that portraying her as a rodent is demeaning and insulting.
She further claimed that since as a journalist she cannot be connected with a commercial product, “Hasbro’s use of her name in association with the Harris Faulkner Hamster Doll creates the false impression that Faulkner would impugn her own professional ethics by agreeing to have a commercial product named after her.”
FIFA’s Audit and Compliance Committee head, Domenico Scala, said if evidence shows Russia and Qatar bought votes to have the World Cup hosted in their country, ‘the awards could be invalidated.’” This comes on the heels of U.S. federal indictments charging FIFA officials with racketeering, conspiracy, and corruption.
Russia and Qatar are not the subject of those indictments, but evidence may emerge from those proceedings about how they won the privilege of hosting the event.
The High Court rendered an opinion in EEOC v. Abercrombie & Fitch Stores, Inc. The bottom line is unless the employer can show it is unduly burdensome to accommodate a religious practice, it must accommodate the person even if it has a mandatory dress code or other neutrally-applied policy. The employer is required to do so if the person asks for the accommodation or even if the employer suspects the person may need one.
Abercrombie did not hire a Muslim woman because her headscarf violated their “Look Policy.” The policy, which is described as “East Coast collegiate or preppy style,” prohibits the wearing of “caps” (an undefined term in the policy) as too informal for their image. The woman applied for a job at one of the stores. The assistant manager of the store interviewed and conditionally approved her for the job. Yet, the headscarf she wore to the interview indicated to the manager that hiring her would be a violation of their “Look Policy.” Although the woman never asked for a religious accommodation, the assistant manager assumed that she would need one if hired and deferred to the district manager. The district manager thought the scarf “would violate the Look Policy, as would all other headwear, religious or otherwise,” and directed the assistant manager not to hire the woman.
The EEOC sued on the woman’s behalf claiming Abercrombie’s action violated Title VII and won a $20,000 judgment. The Tenth Circuit reversed and awarded Abercrombie summary judgment, ruling an “employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation.”
Title VII makes it illegal for an employer “‘to fail or refuse to hire . . . any individual . . . because of such individual’s . . . religion.’ §2000e–2(a)(1).” Religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate [] an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
There are two ways to bring an action under Title VII of the Civil Rights Act of 1964: one is for a disparate- treatment (or intentional-discrimination), and the other, disparate-impact of otherwise facially neutral policies. The “intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.” Disparate-treatment claims based on a failure to accommodate a religious practice is plain: “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
The Court ruled: “An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an ‘aspec[t] of religious . . . practice,’ it is no response that the subsequent ‘fail[ure] . . . to hire’ was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”
Under the ruling, a prospective applicant is not always required, as the Tenth Circuit held, to request an accommodation from an employer. Employers that are aware or believe an accommodation is needed and are motivated to fire or not to hire someone based on that accommodation also violate the statute. As Justice Alito stated in his concurrence, however, if it is unduly burdensome to require the accommodation, then there is no violation.
But Justice Thomas in his dissent was concerned about a broad reading of the words “because of such religious practice” in that it could sweep up an employer’s policy that applies indiscriminately to everyone, yet happens to be at odds with an employee’s religious practice. He gives the following example:
Suppose an employer with a neutral grooming policy forbidding facial hair refuses to hire a Muslim who wears a beard for religious reasons. Assuming the employer applied the neutral grooming policy to all applicants, the motivation behind the refusal to hire the Muslim appli- cant would not be the religious nature of his beard, but its existence. Under the first reading, then, the Muslim applicant would lack an intentional-discrimination claim, as he was not refused employment ‘because of’ the religious nature of his practice. But under the second reading, he would have such a claim, as he was refused employment ‘because of’ a practice that happens to be religious in nature.
Justice Thomas reasoned that under a broad reading employers with no discriminatory motive would be punished because they had no knowledge of every aspect of an employee’s religious practice. It would undermine the intent element of disparate treatment and make the employer strictly liable for its conduct. Citing precedent, Justice Thomas explained “discriminatory purpose” as “‘the purpose necessary for a claim of intentional discrimination” that “demands ‘more than . . . awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.’”
He recognized refusal to accommodate can be discriminatory where an employer does not make a policy exception for someone for religious purposes involving a store policy that is applied to everyone, when at the same time makes the same allowance for someone of another religion or some secular practice. Yet, he explained,”merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant ‘less favorably than others.’” Under the majority’s view “mere refusal to accommodate a religious practice under a neutral policy could constitute intentional discrimination,” unless the employer produces evidence that the accommodation is unduly burdensome and persuades the court that it is so.
The Justice Department charged fourteen people, including nine current or former FIFA figures and five sports marketing professionals, for allegedly “‘foster[ing] a culture of corruption and greed that created an uneven playing field for the biggest sport in the world,’” FBI Director James Comey said. The government alleged racketeering and corruption involving more than $150 million in bribes and kickbacks spanning two decades.
“The investigation grew out of allegations of payoffs to officials who decided where to hold the next two World Cups, the biggest international event in sports, that landed the games in Russia for 2018 and Qatar in 2022, according to three senior U.S. law enforcement officials. The U.S. was runner-up to Qatar’s win.”
FIFA appears to be relieved with the indictments. In a statement posted on its website, it said it “welcomes actions that can help contribute to rooting out any wrongdoing in football.” FIFA further said, “We are pleased to see that the investigation is being energetically pursued for the good of football and believe that it will help reinforce measures that FIFA has already taken.”
The Clinton Foundation is under scrutiny for accepting money from FIFA and Qatar. “In 2014, the Qatar 2022 Supreme Committee, set up by the Qatar government to ensure a successful FIFA world cup, awarded the Clinton Foundation between $250,000 and $500,000; the State of Qatar donated between $1 million and $5 million.” According to the Clinton Foundation website, the money was for “research and development for sustainable infrastructure at the 2022 FIFA World Cup to improve food security in Qatar, the Middle East, and other arid and water-stressed regions throughout the world.”
Healthcare providers, small business, and individuals have filed antitrust lawsuits against Blue Cross and Blue Shield. They allege the 37 independently-owned companies that make up the Blue Cross Blue Shield Association are colluding to avoid competition, raise prices on premiums, and clamp down on payments to providers. Plaintiffs are seeking class action status.
Blue Cross and Blue Shield covers about a third of the nation. In the 1930s, doctors provided insurance under the Blue Shield name and hospitals used Blue Cross. Eventually, the names were trademarked and now companies that use the names operate within an exclusive territory–many in a single state.
According to a Wall Street Journal article, defendant says “its licensing deals simply codify trademark rights that date back decades and ‘do not constitute an agreement to do anything unlawful.’” They claim their model has been around for long time and has withstood government scrutiny. But plaintiffs contend this is cartel-like behavior. The model stifles competition and leads to inflated premiums.
The case will pit antitrust law against trademark rights. Plaintiffs may have a point, especially since at least in one area, California, Blue Cross and Blue Shield plans “compete directly against one another . . . where Anthem Blue Cross battles Blue Shield of California.” That fact appears to cut against defendants’ contention that the deals among licensees are only made to protect trademarks.
A district court judge has declined to dismiss the case, ruling plaintiffs “‘have alleged a viable market-allocation scheme.’”
Many companies provide workers with cell phones for company business. And they expect that their workers respect its proper use. But companies should afford their workers the same respect in terms of privacy.
In a recent report, a woman was fired for deleting an app her employer used to track her movements. She sued for invasion of privacy–a concept covered in Business Law class. Her employer used the phone to follow her off-hours, akin to a “‘prisoner’s ankle bracelet.’”
But the employer is not all wrong. As a traveling saleswoman, her employer had an interest in knowing her whereabouts, however, where they crossed the line was continuing to monitor her off-hours. Employees were not permitted to disable any GPS tracking on the phone and they had to keep it on 24/7.
Under the Fourth Amendment of the Constitution, the government is prohibited from invading someone’s privacy without probable cause and a warrant. The present case deals with the private sector, however. The woman probably had no right to delete the app, because it is company property since it is on a company phone; however, she still could have disabled the phone off-hours and not be in any trouble. Under California law, where she lives, employers are prohibited from following her in this manner when she is off-duty. Many other states have the same prohibitions.
One convenient way (and perhaps the woman in this case could have used) of stopping someone from using a cell phone as a GPS tracker is to put the cell phone in the refrigerator. Apparently, that will block the signals coming in and going out.
In class, we discuss organized crime and its effects on business and society. Recently, Italian special agents, SCO, and the FBI arrested 13 persons in Calabria, Italy, allegedly connected with the ‘Ndrangheta crime family.
With affiliates in the U.S., the suspects were organizing cocaine shipments out of Costa Rica. Authorities arrested them in the middle of the night while they were sleeping and charged them with conspiracy to run an international drug trafficking ring.
The year-long investigation was named “Operation Columbus” and was jointly-led by federal authorities in Brooklyn and prosecutors in Calabria. Gregorio Gigliotti, an owner of pizza shop named “Cucino A Modo Mio” (I Cook My Way), located in Queens, NY, was arrested along with his wife and son. Italian investigators said they had information that he spearheaded the ring. “The Italian restaurant was the command center for bringing some drug shipments to New York and sending others to Europe or Calabria,” Grassi told reporters in Rome. The suspects allegedly shipped cocaine in crates containing cassava, a South American root vegetable.
According to the article, the ‘Ndrangheta has become Europe’s biggest cocaine dealer and has supplanted the Sicilian mafia as the major partner to the New York crime families.
In a recent NJ.com article, expert lawyers in DUI laws revealed how they attack drunk driving charges. Normally, defense lawyers rely on plea bargaining when a client is charged with a crime. Plea bargaining involves an agreement between a prosecutor and defendant where the defendant will plead to a lesser charge in return for dismissal of other charges or to the original charge in lieu of a lighter sentence. Sometimes it may involve a quid pro quo to the prosecutor for information leading to other crimes. But New Jersey does not allow plea bargaining in DUI cases. As a result, defense lawyers have no choice except to work to dismiss the DUI case entirely or prove the evidence results in a downgrade to a lesser charge.
According to the article, oftentimes, defense lawyers will find a technicality. For example, lawyers will challenge a blood draw (which now under both state and federal law must be preceded by a warrant) by demanding an explanation as to how it was performed. The results can be suppressed if the draw was not done by a physician or nurse, or the area was cleaned with alcohol instead of iodine. Some of the sample must be made available to the defense to conduct their own independent tests; failure to do so may result in suppression.
Blood results corroborated by field sobriety tests is stronger evidence of DUI; however, in cases involving injuries to a driver, field tests are foreclosed, leaving only the blood tests. If challenged, again, the case can be dismissed. Issues can arise from the accident scene itself, which can also result in a dismissal. As stated, warrants are necessary in order to perform a blood draw. According to William Proetta of Edison, a defense lawyer that was interviewed, “[I]f a person doesn’t consent or is unconscious, you need to call in a telephonic warrant. If emergency workers are asking the driver questions, without having Mirandized him, an attorney would argue those statements can’t be used against him.” Telephonic warrants are faster to obtain and are encouraged by the courts.
Breath tests using an Alcotest have a different set of procedures–all of which can be challenged in a suppression motion. Repair and calibration records may be subpoenaed, and failure by the State to do so may result in a dismissal. Officers conducting the test must get two successful readings and change the mouth pieces between each reading. The person must be observed for 20 uninterrupted minutes and cannot regurgitate or vomit, as this will produce a false reading. No cell phones or electronic devices can be present in the room.
Lawyers say there are many other ways to challenge the results. They recommend that people pulled over for a DUI not refuse the test, because refusal is a separate charge. The challenge becomes a little trickier in that they have to show the officer read the driver “the wrong statement” when asking if they will take the test. Also, the driver has to clearly say “No.” not once, but twice, to be considered refusal and ambiguous answers, such as, “‘I don’t know.’” or “‘I want a lawyer.’” are not enough.
Defense lawyers will employ experts, often former police officers who are trained in the Alcotest, to testify as to what the officers should have done. Also, discovery challenges are commonplace. If the prosecutor fails to produce discovery within 30 days, that can result in a dismissal. Dashcam video must produced as well; but that can be a double-edged sword. It can be used to impeach an officer’s testimony, or in the alternative, prove that the defendant in fact could not stand or was slurring his or her words.
A DUI can be proven by an officer’s observations as well, without the aid of other evidence. According to Ernesto Cerimele, a DUI defense lawyer in Newark,
If the officer’s report says the driver reeked of alcohol and admitted to drinking several beers, that still counts . . . . Even if the blood or Alcotest evidence is thrown out, if the officer’s observations of the driver and the ‘totality of the circumstances’ point to a driver being intoxicated, he can still be found guilty. The harder cases to defend against are frequently those where the officer fully documents everything he heard and observed in his police report.
Finally, the case can be dismissed if a trial is delayed beyond 60 days, pursuant to New Jersey Administrative Office of the Courts’ guidelines. Based on hardship, inequity and the right under the Sixth Amendment to a speedy trial, a defense lawyer can move for dismissal if the prosecution does not have his or her case ready in time. In one case cited by the article, a prosecutor was given an extra 30 days to produce discovery and failed. That resulted in an immediate dismissal by the judge.