BLS Library Blog

The Office of the United States Department of Justice for the Southern District of New York has compiled a resource page with links to PDFs of court documents from the United States v. Bernard L. Madoff criminal case 09 Cr. 213 (DC). The case began on December 11, 2008, when Bernard L. Madoff was arrested on a criminal complaint alleging one count of securities fraud.

On March 10, 2009, a Criminal Information was filed in Manhattan federal court charging Bernard L. Madoff with eleven felony charges including securities fraud, investment adviser fraud, mail fraud, wire fraud, three counts of money laundering, false statements, perjury, false filings with the United States Securities and Exchange Commission (“SEC”), and theft from an employee benefit plan. The criminal case concluded on March 12, 2009 when Madoff pleaded guilty to all eleven counts in the Information. Bernard Madoff’s guilty plea allocution can be found at page 23 of the Transcript of the March 12, 2009 Guilty Plea Proceeding,

Madoff faces a statutory maximum sentence of 150 years’ incarceration. Madoff is also subject to mandatory restitution and faces fines up to twice the gross gain or loss derived from the offenses.

The site has links to http://www.madoff.com/ where the receiver will be posting information about its activities and to http://www.sipc.org/ where the trustee will be posting information about its activities. Investors and other interested parties should consult those websites for more information.

In the next two months, the Brooklyn Bar Association will host a series of educational programs and events for legal practitioners and law students. Among the events sponsored by the BBA are these which will take place at the BBA’s offices at 123 Remsen Street:
 

On-Line Legal Research – Using the West Key Digest System March 23, 2009 (1:00-2:00pm) and Using Lexis April 6, 2009 (1:00-2:00pm) Brooklyn Supreme Court Senior Law Librarian, Jacqueline Cantwell will cover the basics of online research from signing on, retrieving a case when you have a citation or party name, how to update by Keycite and Shepard’s, tables of authorities, retrieving New York Code sections, and e-mailing and printing cases.
 

Traffic Violations Update – March 25, 2009 (6:00-8:00pm) The program will feature leading figures in this area, Hon. John L. Araujo, senior administrative law judge, New York state Dept. of Motor Vehicles; Hon. Stephen Borkan, a supervising administrative law judge; Karen Friedman, President of the Association of Motor Vehicle Trial Attorneys; Jeffrey Levine, whose practice focuses on handling chemical test refusal hearings and Michael Beer, an attorney who defends clients against traffic violation charges. The agenda promises to cover the prima facie elements and defenses to common traffic violations such as speeding, seatbelts, cell phone violations and others. Participants will learn about chemical test refusal hearings and see a demonstration of the type of laser gun used by police.
 

Electronic Filing in New York State Courts – April 20, 2009 (6:00-8:00pm) Jeff Carucci, the Statewide Coordinator for E-Filing and Chris Gibson, the Case Management Coordinator for the E-Filing Resource Center will lead this overview of the E-Filing program in NYS Courts. They will demonstrate in detail how the e-filing software works and the benefits it offers to users.
 

Ethics in Litigation Financing – April 28, 2009 (5:30-7:30pm) Former BLS Prof. Anthony Sebok will present a course on legal ethics and client counseling in the area of legal finance; current New York law concerning the legality of non-recourse funding under Judiciary Law §489; the NY rules of professional conduct; the history of champerty (a prohibition against the sale of a party’s interest in a lawsuit) and maintenance (intermeddling of an uninterested party to encourage a lawsuit) in English and American common law; and the policy reasons that have led the NY courts and legislature to permit non-recourse funding of litigation.

The development this week on the use of presidential signing statements is welcome news. Presidential signing statements, official pronouncements issued by the President contemporaneously to the signing of a bill into law the White House, have been used as far back as 1830 by President Jackson when he raised objections to an appropriations bill. A history of the use of signing statements is laid out in detail in a September 2007 CRS Report entitled Presidential Signing Statements: Constitutional and Institutional Implications.

The extensive use of signing statements during the Bush Administration drew criticism that led to the American Bar Association voting unanimously to investigate whether President Bush exceeded his constitutional authority in reserving the right to ignore laws enacted during his term of office. See Recommendation by the American Bar Association, Task Force on Presidential Signing Statements and the Separation of Powers Doctrine in SARA, the BLS Library catalog.

This week’s Memorandum for the Heads of Executive Departments and Agencies on the Subject of Presidential Signing Statements by President Obama directs executive branch departments and agencies to seek the advice of the Attorney General before relying on signing statements issued prior to March 9, 2009.

The memo also describes legitimate uses of signing statements and sets out principles that the administration will adhere to in order to avoid abusive use of signing statements. Specifically, paragraph 3 of the memo states:

To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.

President Obama has not ended the practice of issuing signing statements as can be seen from his statement issued on signing H.R. 1, the American Recovery and Reinvestment Act of 2009 (Public Law 111-5). The statement is more of a rhetorical signing statement than one seeking to modify the meaning of the statute like those of the prior administration. A Jurist report refers to Congressional critics including Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and ranking Republican member Arlen Specter (R-PA) who said that Bush’s signing statements impermissibly intruded upon Congress’s power to write and enact laws under Article I of the Constitution which vests legislative powers exclusively to the Congress.

An earlier post on this site discussed Wyeth v. Levine, the case before the US Supreme Court on whether federal law preempts state torts claims imposing liability on drug labeling that the FDA had previously approved. Today, the Court issued its decision rejecting the preemption argument made by the pharmaceutical defendant by a 6-3 vote. Justice Stevens wrote the majority opinion. Justice Alito wrote the dissent in which Chief Justice Roberts and Justice Scalia joined.

The factual background involves the plaintiff Levine, a children’s guitarist in Vermont who went to a clinic for treatment of a severe migraine headache and associated nausea. She was originally treated with intramuscular injections of Demerol (for headache) and the pharmaceutical defendant Wyeth’s drug, Phenergan (for nausea). Intramuscular injection was the preferred method for administering Phenergan identified in the product’s labeling. When she had no relief from that treatment, Levine returned to the clinic, where she received a second dose of Phenergan by IV push injection. Unfortunately, the needle was inserted into an artery rather than a vein leading to gangrene and the amputation of Levine’s arm. Levine filed a failure-to-warn product liability case against the pharmaceutical company and obtained a jury verdict in amount of $6.7 million. The defendant Wyeth argued that Vermont’s stricter regulations on administering the drug were preempted by less stringent federal regulations. The preemption doctrine has been used by drug manufacturers as a shield in lawsuits brought by injured consumers, adversely impacting consumers.

A NY Times article entitled Drug Approval Is Not a Shield From Lawsuits, Justices Rule suggests that preemption is no longer a valid defense for drug companies. While the decision appears on first reading to be a defeat for the preemption doctrine that federal-level approval stops liability suits at the state level, a closer reading suggests that the preemption doctrine is not entirely dead. At page 8 of the opinion, the Court draws a distinction between express and implied preemption. It also finds that congressional intent is the “touchstone” of implied preemption cases as well as express preemption cases, and that the presumption against preemption applies to implied preemption cases. The WSJ Law Blog has its take on the decision in its post A Big Day for State Tort Law: A Closer Look at Wyeth v. Levine suggesting that the case is really about statutory interpretation. In addition to the Wyeth case, the Court has recently addressed the preemption doctrine in its decisions in Riegel v. Medtronic, Inc. and Altria Group Inc. v. Good.