April 2007 Archives

Filler in Animal Feed Is Open Secret in China - New York Times

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Filler in Animal Feed Is Open Secret in China - New York Times

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ZHANGQIU, China, April 28 — As American food safety regulators head to China to investigate how a chemical made from coal found its way into pet food that killed dogs and cats in the United States, workers in this heavily polluted northern city openly admit that the substance is routinely added to animal feed as a fake protein.

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The link to China has set off concerns among critics of the Food and Drug Administration that ingredients in pet food as well as human food, which are increasingly coming from abroad, are not being adequately screened. “They have fewer people inspecting product at the ports than ever before,” says Caroline Smith DeWaal, the director of food safety for the Center for Science in the Public Interest in Washington. “Until China gets programs in place to verify the safety of their products, they need to be inspected by U.S. inspectors. This open-door policy on food ingredients is an open invitation for an attack on the food supply, either intentional or unintentional.

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FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 04/26/07

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ANTITRUST & TRADE REGULATION, CONTRACTS, INJURY AND TORT LAW
White Plains Coat & Apron Co. v. Cintas Corp., No. 32
On certified question from U.S. Court of Appeals for the Second Circuit, the Court answers that a generalized economic interest in soliciting business for profit does not constitute a defense to a claim of tortious interference with an existing contract for an alleged tortfeasor with no previous economic relationship with the breaching party.


ATTORNEY'S FEES, CIVIL PROCEDURE, PROFESSIONAL MALPRACTICE
Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, No. 52
In legal malpractice action, reversal of summary judgment for plaintiff, which had awarded plaintiff his legal and expert fees incurred in trial where he was represented by defendant firm, is modified to reinstate summary judgment for plaintiff, but without costs or interest.

CIVIL PROCEDURE, PROFESSIONAL MALPRACTICE, TAX LAW
AmBase Corp. v. Davis Polk & Wardwell, No. 51
Defendant law firm, which successfully litigated an I.R.S. tax dispute, did not commit legal malpractice when it failed to question whether an agreement entered into between the client and a related company may have relieved it of the tax liability. Defendants were properly awarded a money judgment where defendants had not answered or asserted a counterclaim.

CRIMINAL LAW & PROCEDURE, CYBERSPACE LAW
People v. Kozlow, No. 49
A defendant charged with attempted dissemination of indecent material to minors in the first degree under former Penal Law section 235.22 may properly be convicted under that statute even though his communications contained no nude or sexual images.

NYTIMES: The Little Projectors That Pack a Punch

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The Little Projectors That Pack a Punch - New York Times

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CONFERENCE rooms usually have digital projectors that presenters can use to show off PowerPoint slides and other visuals stored on their laptops. But road warriors selling goods or giving talks at impromptu sites can’t count on this amenity for their presentations. They have to lug along their own projectors, just in case.

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Check out the full text of the article for a review of these new smaller digital projectors available for office and home. NYTIMES may require free registration.

Atticus Graduate Top 10 Calls

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Atticus Online - Audio

To commemorate its 100th Graduate Network call, Atticus has selected their Top 10 picks of those calls and they are available for you to download - FREE. These calls were selected as the most popular by their graduates.

Subjects range from how to get away from the billable hour, to using technology more effectively, to innovative marketing ideas, and to basic practice management. Enjoy these free audio programs.

Atticus is a leading practice management education and training organization for attorneys.

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Full Disclosure: The poster was a presenter in an Atticus conference call on technology in 2005 and received a very nice fruit box of pears and apples as a gift.

Loki

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Loki - You Can Get There From Here

Find out exactly where you are. With just one click, Loki will pinpoint your location on a map.

Loki is an Internet local search and location sharing application that lets you automatically use the most important variable when looking for information your current physical location. Think about it....when you shop, check for news, check traffic, look for social events, think about things to do, search for a movie - in almost every case the answer depends on where you are.

Location sharing means that you can tell others where you are. Loki lets you do this two ways. First, you can click the 'Email' button and instantly send your location to anyone through your preferred email program. Second, you can send your location to mobile phones via text messages by using the SMS button. Finally, you can automatically share your location through various 'friend finder' programs such as Frappr or Where.com.

Once you've registered your account in the Loki options, your location will be automatically updated at the time interval you choose and your friends, family and colleagues will be able to see where you are. Check out Features and to learn more about how it works.

Loki is for Windows XP and IE6 or Firefox. Sorry, no Macs-yet; but Mac OS X and Linux are coming.

Download

Supreme Court Upholds Federal Abortion Ban Law in 5-4 Ruling

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GONZALES V. CARHART

(U.S. Supreme Court) - In a challenge to the federal Partial-Birth Abortion Ban Act which proscribes a particular method of ending fetal life in the later stages of pregnancy, judgments enjoining enforcement of the Act are reversed as respondents failed to show that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to have an abortion.

Suit Over N.Y. Rules on Lawyer Advertising Goes to Trial

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Law.com - Suit Over N.Y. Rules on Lawyer Advertising Goes to Trial



Joel Stashenko
New York Law Journal
April 17, 2007

A federal judge on Friday declined to dismiss a challenge (Full text of Complaint)to the constitutionality of New York state's new rules on attorney advertising.

Northern District of New York Judge Frederick J. Scullin Jr., sitting in Syracuse, set June 18 for the beginning of a trial on the constitutionality of the state's new guidelines on attorney advertising.

The new rules, adopted by the presiding justices of the four Appellate Divisions, went into effect Feb. 1. They are being challenged by the personal injury firm Alexander & Catalano of Syracuse and Rochester, that firm's co-founder James L. Alexander and Public Citizen Inc., a Washington, D.C.-based advocacy group founded by Ralph Nader in 1971.

After a hearing, Judge Scullin denied the state's motion to dismiss in Alexander v. Cahill, 5:07-CV-00117. Ruling from the bench, he also reserved judgment on the plaintiff's motion for a preliminary injunction against enforcement of the rules and told the parties to prepare for an expedited trial.

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See entire article

Poster Advisor

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elaws - Poster Advisor

The Poster Advisor is designed to help employers comply with the poster requirements of several laws administered by the Department of Labor (DOL).

These laws require employers to display official DOL posters where employees can readily observe them. DOL provides the posters at no cost to employers.

New York posters.

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Hat Tip to New York Small Business Law, a very informative and useful blog. Free subscriptions are available.


Law.com - Fees Still Possible in Absence of Retainer Letter, N.Y. Appellate Panel Says


Tom Perrotta
New York Law Journal
April 9, 2007


An attorney who violates the state's official Codes, Rules and Regulations (NYCRR) by failing to obtain a written retainer agreement or letter of engagement from a client in a nonmatrimonial case can still recover fees, an appeals court held last week in a ruling of first impression.

An unanimous panel of the Appellate Division, 2nd Department, said its interpretation of the rule, 22 NYCRR 1215.1, would not render it "impotent and unenforceable," as the appellant in Seth Rubenstein, P.C. v. Ganea, 2005-07813, had alleged.

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Full text of article featuring analysis of state of law and links to decisions.

Welcome to Google Voice Local Search

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Google Voice Local Search


Google Voice Local Search is Google’s experimental service to make local-business search accessible over the phone.
To try this service, just dial 1-800-GOOG-411 (1-800-466-4411) from any phone.

Using this service, you can:


search for a local business by name or category.
You can say "Giovanni's Pizzeria" or just "pizza".
get connected to the business, free of charge.

get the details by SMS if you’re using a mobile phone.
Just say "text message".

And it's free. Google doesn’t charge you a thing for the call or for connecting you to the business. Regular phone charges may apply, based on your telephone service provider.

Note: Google Voice Local Search is still in its experimental stage. It may not be available at all times and may not work for all users. They’re fine-tuning the service to get better at recognizing requests. It’s currently only available in English, in the US, for US business listings-no residential listing-yet.

Paying for 411 is so 20th Century.

For "Cheat Sheet" see extended entry

STUDENT RIGHTS & DISCIPLINE

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Via National School Boards Association Legal Clips (free subscription)

A U.S. district court in New York has ruled that a school district violated an elementary school student's right to free speech when it rejected her request to distribute a "personal statement" concerning the impact Jesus has had on her life to classmates during non-instructional time. The court found that both the district's formal materials distribution policy and the reasons district officials cited in prohibiting the distribution amounted to impermissible viewpoint discrimination. However, the court rejected the student's equal protection and Establishment Clause claims. M.B., a student at Nate Perry Elementary School (NPES), had previously passed out religious materials to classmates during non-instructional time. However, Liverpool Central School District (LCSD) officials informed M.B.'s mother that any request to distribute literature would have to comply with the district's materials distribution policy. LCSD denied M.B.'s request on two grounds: (1) the request was not consistent with the policy because it did not designate the entire class as recipients; and (2) the proposed manner of distribution, the proselytizing nature of the flyer, and the elementary aged audience created a danger of an Establishment Clause violation. M.B.'s mother sued, arguing that LCSD had engaged in impermissible viewpoint discrimination based on religious content, in violation of the Free Speech, Equal Protection, and Establishment Clauses.

Addressing the free speech claim, the court noted that the parties agreed that LCSD had created a limited public forum, in which the district could "make reasonable, viewpoint neutral rules governing content and enforce reasonable time, place, and manner restrictions." The court determined it must apply the test for school-sponsored speech to the district's official policy, while applying the test for private speech to the officials' actions taken independent of the policy. Regarding the former, the court determined that the policy was constitutional under the test for school-sponsored speech set forth in Hazelwood School District v. Kuhlmeier, 484 U.S. 261 (1971), because it was reasonably related to the legitimate pedagogical concern of maintaining order in an elementary school setting and was viewpoint neutral. Regarding the latter, however, the court determined that the rejection of the flyer would not meet the standard for restricting private speech enunciated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), because the district had failed to adduce any "evidence showing that M.B.'s flyers would disrupt the elementary classroom, cause substantial disorder, or invade the rights of others." The court rejected LCSD's argument that its actions were necessary to avoid offending the Establishment Clause, finding that allowing M.B.'s distribution would be acceptable under the purpose, effect, and entanglement prongs of Lemon v. Kurtzman, 403 U.S. 602 (1971).

Turning to the time, place and manner restrictions, the court stated that they must: (1) be content neutral, targeting some quality other than substantive expression; (2) be narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for expression. Applying this test, the court concluded the restrictions were unconstitutional, even if they were content neutral, because "they restrict considerably more than is necessary to serve [LCSD's] interests in ensuring 'consistent, orderly, and non-disruptive distribution of documents,' avoiding unnecessary controversy among students, and preventing a 'littering problem.'"

The court rejected M.B.'s contention that the policy imposed impermissible prior restraint on her speech by requiring approval of materials, finding instead that the "unique requirements of the educational process" meant the policy did not create the presumption of unconstitutional prior restraint. However, the court agreed with M.B. that the policy lacked objective criteria by which LCSD officials must approve or deny literature, as well as a definite time period during which they must do so. The court disposed of M.B.'s equal protection claim on the ground that she failed to show that any similarly situated students were treated differently. Nor was there anything to suggest LCSD acted with the purpose of inhibiting religion in violation of the Establishment Clause. Testimony from LCSD officials showed that there was neither an attempt nor a policy to prohibit M.B. from speaking with other students during non-instructional time about her religious beliefs.

Full Text: M.B. v. Liverpool Cent. Sch. Dist., No. 04-1255 (N.D. N.Y. Mar. 29, 2007)

[Editor's Note: A more detailed summary of the decision is posted below, followed by summaries of two other recent decisions in cases involving student distribution of materials in school are summarized below. The third link is to an NSBA chart reviewing court decisions over distribution of religious materials.]

[NSBA detailed summary]

[NSBA School Law pages on M.A.L. v. Kinsland]

[NSBA School Law pages on Raker v. Frederick County Public Schools]

[NSBA chart on materials distribution decisions]

Daily Opinion Summaries for New York Court of Appeals - 04/03/07

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BANKING LAW, COMMERCIAL LAW, RETAIL 
Highland Capital Mgmt. LP v. Leonard Schneider, No. 38 In answer to a certified question by the U.S. Court of Appeals for the Second Circuit, eight promissory notes at issue in the case fall within the definition of a security as contemplated by section 8-102(a)(15) of the New York Uniform Commercial Code.

CIVIL PROCEDURE, PER CURIAM, PROFESSIONAL MALPRACTICE 
Zorn v. Gilbert, No. 86 SSM 6
Legal malpractice cause of action is reinstated where the Appellate Division erred in holding that plaintiff's cause of action was time-barred.

CRIMINAL LAW & PROCEDURE, EVIDENCE 
People v. Havrish, No. 31
In case where defendant complied with an order of protection to turn over his firearms to police, and he produced an unlicensed handgun, accusatory instrument charging defendant with criminal possession of a weapon is dismissed, and denial of motion to suppress is reversed where defendant's surrender of the handgun was privileged under the Fifth Amendment.

CRIMINAL LAW & PROCEDURE, PER CURIAM, SENTENCING 
People v. Dean, No. 35
Conviction and sentence based on guilty plea to possessing a sexual performance by a child are modified such that defendant's sentences will run concurrently rather than consecutively.

ENVIRONMENTAL LAW, PROPERTY LAW & REAL ESTATE, WATER LAW 
Nilsson v. Dep't of Envtl.Prot.. of City of New York, No. 37
In case involving plan to build a house on a parcel of vacant land within the New York City Watershed, reversal by appellate division of order upholding denial of permit and of variance to subsurface sewage treatment system is modified as the question whether he demonstrated substantial hardship must be remitted to appellants for reconsideration since respondents failed to provide information concerning contiguous holdings to appellants.

GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE 
328 Owners Corp. v. 330 West 86 Oaks Corp., No. 34
Under the circumstances presented in this case, land use restrictions as set forth in article 16 of the General Municipal Law and referenced in the recitals of a deed to real property can be enforced against a successor grantee.

No Raise for NY Judges

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Law.com - N.Y. Judges' Raises out of Budget After Last-Minute Bargaining

New York Gov. Eliot Spitzer said Friday the budget agreement he has negotiated with the state Legislature does not contain money for the judicial pay raises he proposed in January, nor allow for the creation of a commission proposed by Chief Judge Judith S. Kaye to set future judicial salary increases.

"There is no judicial pay raise," Spitzer told reporters as he gave more details about what is in the $121 billion budget for fiscal year 2007-08. "I wish there were."

Spitzer said the $121 million in spending that he proposed was taken out of the budget by the Legislature. Of that amount, $111 million had been appropriated for judicial pay raises retroactive to April 1, 2005, and going forward.

That $111 million has been applied to other spending purposes under the agreement Spitzer made with the chief legislative leaders, Assembly Speaker Sheldon Silver and Senate Majority Leader Joseph Bruno.

The governor also said the commission that Kaye proposed be established to set future salary increases would not be provided for in the budget.

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Joel Stashenko and Daniel Wise
New York Law Journal
April 3, 2007

full text

Telephone Tax Refund for Cell Phones

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Many Cell Phone Customers May Be Overlooking Telephone Tax Refund; Before You File, See if You Qualify, IRS Advises

IR-2007-70, March 27, 2007

WASHINGTON — Many cell-phone users appear to be overlooking the telephone tax refund in the mistaken belief that this one-time refund only applies to land-line customers.

According to the Internal Revenue Service, most cell-phone users qualify for the federal telephone excise tax refund. In most cases, the refund is also available to land-line, fax and Internet phone customers as well. The method of phone signal transmission does not affect the refund. The telephone-tax refund can add $30 to $60 — or even more — onto a taxpayer’s refund.

“Many taxpayers are overlooking this special refund and the chance to get a bigger refund,” said IRS Commissioner Mark W. Everson. “We encourage taxpayers to spend a few extra minutes reviewing their tax return to make sure they are making an accurate request. A little extra time can mean a bigger refund check.”


Municipalities that want to exclude strip clubs must first consider evidence of potential negative impacts such as rising crime or falling property values, a federal appeals court has ruled.

The 2nd U.S. Circuit Court of Appeals said that, although the U.S. Supreme Court has not "expressly decided the issue," its case law suggests that town officials must provide evidence of "negative secondary effects" before passing an ordinance to ban nude dancing.

The decision in White River Amusement Pub Inc. v. Town of Hartford, 06-0233-cv, was made by Judges Guido Calabresi, Rosemary Pooler and Barrington D. Parker. Judge Pooler wrote for the panel.

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