Attorney Find Blog

The Center for Science in the Public Interest (CSPI) this week filed suit against Burger King over its persistent use of trans fats in food preparation and its failure and refusal to disclose the trans fat content to consumers.

Although trans fats have long been believed to be more damaging to health than other kinds of fat, recently clear evidence has come to light demonstrating just how dangerous trans fats can be. The American Heart Association recommends getting no more than 1% of calories from trans fat, or about 2 grams–but a single King-size serving of Burger King onion rings contains 6 grams of trans fat.  According to CSPI, a sausage biscuit with a large order of hashed brown potatoes contains a whopping 18 grams–considerably more than one person should consume in a week.

According to the Harvard School of Public Health, that’s not something to be taken lightly.  Researchers say that increasing trans fat consumption by a mere 2% of calories increases the risk of developing coronary heart disease by as much as 23%.

CSPI says it’s contacted Burger King and made every effort to work with the chain to decrease and eventually remove trans fats from its menu or to disclose the trans fat content to consumers, but Burger King won’t disclose and will only agree to start phasing out trans fats at the end of 2008.  Thus, CSPI has filed suit under the District of Columbia’s consumer protection statutes, alleging deceptive practices and a breach of the implied warranty of merchantability.

Ben Stevens over at the South Carolina Personal Injury Blog dug deep into the past for his post today–well, three years deep, anyway, which is a significant time period in terms of legal developments–but when we saw the order he’d resurrected, we didn’t blame him a bit.

Any of us who have had cases held up, complicated, and generally turned into unnecessary headaches by the attitudes and tactics of those (blessedly rare) opposing attorneys who were looking for a schoolyard brawl instead of a professional proceeding will enjoy this order, in which a federal judge questions whether the counsel appearing before him in the case at hand ever attended kindergarten, since neither seems to have learned to play well with others.

Value of Credit Counseling Requirement Is Not Clear: That’s the title of a 54 page report issued this month by the United States Government Accountability Office. The GAO was asked to examine the process of approving credit counseling providers, the content and results of the sessions, the fees, and the availability and accessibility of the required credit counseling briefings.

To no one’s surprise (or at least, no one who is involved in the consumer bankruptcy process), the GAO found that the benefits of the credit counseling requirement were not clear. Although the requirement is intended to make sure that consumers have adequate information to make informed decisions about bankruptcy and are aware of their other options, the evidence suggests–as consumer bankruptcy attorneys and credit counseling agencies have been pointing out almost since the moment BAPCPA took effect–that most consumers have reached the crisis point by the time they seek pre-filing credit counseling, and are unlikely to have other viable options available at that stage.

The credit counseling requirement is still in effect, and filing for bankruptcy without having completed the required credit counseling briefing and filed a certificate can mean dismissal–which can have catastrophic results when the automatic stay is lifted and actions like foreclosure and repossession can move forward. However, the GAO is suggesting that the U.S. Trustee Program begin tracking and analyzing outcomes of the pre-filing credit counseling requirement.

The GAO also suggested that the U.S. Trustees create clearer guidelines for determining when fee waivers based on inability to pay should be required.

Earlier this month, a Los Angeles jury awarded $1.7 million to former Los Angeles firefighter who is a white, male Jehovah’s Witness.  The case is an interesting one because it arises from claims of racial, sexual, and sexual orientation discrimination.  Lewis “Steve” Bressler, the recipient of the award–which included $1.3 million in lost wages and $405,000 for emotional distress–was one of three plaintiffs in a case that began with alleged discriminatory actions against Brenda Lee, a black, female homosexual.  Bressler and another firefighter, Gary Mellinger, alleged that their careers suffered when they intervened on behalf of Lee.

Mellinger settled his part of the case for $350,000 after a jury found in his favor.  Lee’s claim has not yet reached the trial stage.

The bankruptcy reform that took place in October of 2005 caused complications for everyone involved in the bankruptcy process–new pre-filing requirements, new post-filing requirements, greater responsibility placed on attorneys for researching the accuracy of information provided by their clients (and the attendant increased expense), a multi-step means test to determine whether one could file for Chapter 7 bankruptcy, and more. But one of the gravest concerns surrounding the new law related to the restrictions placed on consumer bankruptcy attorneys–restrictions that might prohibit attorneys from giving accurate, legal advice to their prospective bankruptcy clients.

Those provisions were challenged almost immediately, and the Milavetz case in Minnesota was among the first to challenge the Constitutionality of those restrictions. Nearly a year and a half later, that court has entered a summary judgment order declaring that those restrictions cannot be applied to Minnesota attorneys.

An editorial in the Wall Street Journal points out the importance of criminal defense attorneys, and it’s stirred up a lot of discussion.  The editorial, written by a former prosecuting attorney, spurred comments from this Austin Criminal Defense attorney and this blog that isn’t really about penguins, among others.  The issue is as old as the legal profession, and it’s been discussed at length in various forums in the past.  The Ethics Scoreboard asked the old “how can you defend people you know are guilty” question long ago, and came up with this defense of criminal lawyers almost two years ago.

But in the current climate of negative consequences for attorneys who do their jobs and nagging criticism of the personal injury plaintiff’s bar, it’s good to see people who understand the system–or have taken the time to analyze it–setting the record straight, whether those people are ethicists, attorneys, major newspapers, or just bloggers with something to say about lawyers.

Yesterday, the Administrative Office of the Courts released–at long last–bankruptcy filing statics for the last quarter of 2006. Thus, for the first time we have an official count on the number of bankruptcy filings during 2006 as compared to 2005, and naturally there’s a significant difference. 2006 filings totaled just over 617,000, a dramatic drop from the more than two million filings in 2005.

But of course, that came as a surprise to no one. We all saw the huge glut of filings in the fall of 2005, when the law was abou to change and consumers were under the impression that they wouldn’t be able to file after October 17. And in the aftermath, a variety of factors kept filings down, not the least of which was that a lot of people–probably a couple of hundred thousand of them–who would otherwise have filed in 2006 had rushed to do so in the fall of 2005.

But the clear fact that never seems to make the headlines is that filings have been steadily climbing since shortly after the new bankruptcy law took effect in the fall of 2005, and they continue to climb. The first quarter of 2006 saw 116,771 filings, while the comparable period in 2007 recorded an estimated 186,788 filings–that’s an increase of more than 50%. The exact point where the rush and dearth settle and we find the true post-BAPCPA levels remains to be seen, but current filing rates make it seem likely that we’ll bring in 2007 in the neighborhood of 1 million filings.

The Congressional Joint Economic Committee issued a press release last week headed, “All Stakeholders in Subprime Mortgage Mess Must be Responsible for Helping Homeowners and Communities Hit Hardest by Foreclosure”. With some estimates indicating that more than 12% of subprime mortgages in the United States are in foreclosure right now, interest rates continuing to adjust upward, and property values declining dramatically in some areas, there is no question that America is facing a foreclosure crisis.

The press release criticized what it characterized as a White House tendency to blame the homeowners for signing up for deceptive subprime mortgages, and suggested that the federal government coordinate stakeholders to create emergency funds (from public and private sources) to assist families in need in refinincing subprime mortgages.

Although initial projections focused on the ARM adjustments scheduled to take place in 2006–and those dire predictions have largely come to pass–the Joint Economic Committee’s report suggests that subprime foreclosures will continue to increase in 2007 and 2008 as an additional 1.8 million hybrid ARMs adjust upward.

At the same time, home values are declining in many areas, and drastically in some. Arizona home values depreciated by more than 26% from 2005 to 2006, and other areas have seen drops nearly as extreme. Florida, California, Hawaii, and the District of Columbia have all seen property values decline by 15% or more, making both sale and refinancing unrealistic for many homeowners.

Anna Nicole Smith and the people around her have been involved in more legal issues than the typical attorney of late–tens of millions of dollars were at stake even before Smith’s death; her estate claim made it all the way to the United States Supreme Court, but still hadn’t been resolved at the time of her death. Despite the hundreds of millions of dollars in her late husband’s estate, there’s a bankruptcy claim involved, too. And now, after Anna Nicole’s untimely but unsurprising death, a startling percentage of the nation has been waiting with bated breath to find out who fathered Dannielynn, Anna Nicole Smith’s 7-month-old daughter. The baby has been living with Howard K. Stern, Smith’s companion and former attorney, who is listed as the father on Dannielynn’s birth certificate. However, DNA tests today revealed that Larry Birkhead is Dannielynn’s natural father. The legal battles are far from over, however. Smith’s late husband’s family continues to fight the inheritance that Smith claimed during her lifetime and that would now pass to Dannielynn, and no ruling has been entered regarding custody of the child.

David Hicks, the Australian native being held as a terrorist at Guantanamo Bay, was sentenced for commission of war crimes to only 9 months in prison. David Hicks is one of the worst-of-the-worst, but he’ll be out of jail before the end of this year. If this doesn’t sound right to you, join the club.

Hicks’ tribunal was the first to be completed since the White House overhauled the system following a Supreme Court holding that the tribunals violated Constitution protections and the Geneva Conventions protecting soldiers and others captured on the field of battle. Hicks’ plea bargain and nine month sentence shows just how screwed up the tribunal system remains.

Hicks arrived at the courtroom with three lawyers, one Marine Major and two civilians. By the end of the day, he had only the Marine Major to protect him. The judge dismissed both civilian attorneys on questionable premises. The judge also berated Hicks for his attire. He explained that Hicks should be wearing business dress rather than the short-sleeved, khaki prison garb he had on: Such proper attire would ensure that Hicks was adequately protected by the presumption of innocence.
Hicks then signed a plea agreement, admitting he had trained with Al Qaeda, guarded a Taliban tank, and had scouted a closed American embassy building. Hicks had fought on the battlefield for a mere two hours, before selling his weapon to raise cab fare to flee to Pakistan. Fighting in battle has never been considered a war crime, until now.

His plea agreement has a unique feature. Hicks agreed to recant his allegations of abuse while in detention and not to speak to reporters for one year. Jennifer Daskal of Human Rights Watch said this unusual agreement for Hicks’ silence indicates that the primary goal of the US Government is protecting itself from the “disclosure of abuse.”

Meanwhile, the Government continues to try to scare lawyers off. Recently, Cully Stimson, deputy assistant secretary of defense for detainee affairs, publicly called it “shocking” that major American law firms could represent Guantanamo Bay detainees free of charge and said they would likely suffer financially after their corporate clients learned of the work. He said, in an interview on Federal News Radio: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms” He added that he thought some law firms were not actually representing clients free of charge and were “receiving money from who-knows-where.” Who-knows-where is obvious code for Al Qaeda.

If the US Government really wants to stop terrorism, that means preventing the next generation from growing up as terrorists. The way to stop a new generation of terrorists is to be all we can be, to hold these trials fairly and above board. Muslims throughout the world want to see the bastards that killed three thousand people on September 11th punished for their deeds, but they also want the United States to lead, to show their own governments how to hold a fair trial.