Vintage Filings Legal Blog

The U.S. District Court, Eastern District of Missouri dismissed all remaining claims in a lawsuit against the City of Arnold, Missouri, and American Traffic Solutions (ATS), confirming the legality and constitutionality of Missouri’s red-light camera programs.

The comprehensive ruling in Kilper, et al. v. City of Arnold, Missouri, et al., adds onto the list of other cases across the United States in stating that photo-enforcement programs are constitutional public safety programs. Today’s ruling is consistent with a January ruling by the Seventh Circuit, U.S. Court of Appeals, affirming the constitutionality of red-light photo-enforcement programs.

“We have long held that this lawsuit was frivolous, and we are pleased that the U.S. District Court of Eastern Missouri has confirmed this fact. This opinion further negates unfounded claims against red-light camera safety programs and confirms the legality, constitutionality and safety benefits of photo enforcement,” said James Tuton, President and CEO of American Traffic Solutions. “Red-light camera safety programs successfully modify driver behavior by increasing compliance with traffic laws. These programs have proven to improve safety on the roadways by reducing red-light running, which causes unnecessary crashes, injuries and deaths.”

The U.S. District Court held that the ordinance allowing for the City of Arnold’s red-light camera safety program “…has a legitimate, non-punitive, public safety purpose. Moreover, the use of red light cameras and related proceedings are rationally connected to the valid public safety purpose of reducing traffic accidents at traffic light intersections.” The court further held that because enforcement of a red-light camera ordinance is a civil proceeding, issuing notices of red-light violations to the owner of the vehicle did not violate due process or wrongfully shift the burden of proof.

Pro-Pharmaceuticals today announced that the Superior Court of Suffolk County in Massachusetts formally issued its judgment yesterday dismissing the trade secret lawsuit prosecuted by Prospect Therapeutics against the Company and its former Chief Executive Officer, David Platt, Ph.D.

Boston attorney Joan Griffin, who with Chris Robertson of Seyfarth Shaw represented the Company and Dr. Platt at trial said, “Unfortunately, even meritless claims against intellectual property can be difficult to extinguish, creating an unwarranted cloud over a strong company with promising new technology. The post-trial dismissal of this case is the right result.”

Jonathan Guest, of Greenberg Traurig, corporate counsel to the Company which provided intellectual property support to the trial team, praised the high quality and cost-efficiency of Ms. Griffin’s and Mr. Robertson’s trial preparation and presentation. He commented that “this was an important victory for a company that desires to devote resources to its drug development program.”

“Putting this lawsuit behind us is a significant event,” said Theodore Zucconi, Ph.D., Chief Executive Officer, Pro-Pharmaceuticals. “This decision enables us to forge ahead with the commercialization of DAVANAT through partnerships with pharmaceutical companies, and gaining FDA approval for DAVANAT. We believe DAVANAT will dramatically improve the quality of life for cancer patients.”

On May 15, 2009, Prospect announced that it was liquidating and had assigned all of its assets for the benefit of creditors. In response, the Company moved to dismiss the lawsuit on various grounds, including failure to prosecute. At a post trial hearing on July 14, 2009, in a ruling from the bench, the Court allowed the Company’s motion to dismiss.

Does it seem like your online marketing campaigns aren’t hitting their goals? You may be the victim of click fraud. Click Forensics today released industry pay-per-click (PPC) fraud figures for the second quarter 2009 from the search advertising industry’s leading independent click fraud reporting service – the Click Fraud Index. Now in its fourth year, the Click Fraud Index provides statistically significant industry PPC data collected from online advertising campaigns for both large and small advertisers across all leading search engines. Traffic across more than 300 ad networks is also reflected in the data. Key findings for Q2 2009 include:

• The overall industry average click fraud rate was 12.7 percent. That’s down from 13.8 percent for Q1 2009 and from the 16.2 percent rate reported for Q2 2008.
• Click fraud traffic from sophisticated sources and scripted programs rose again in Q2 2009. This included a rise in the incidents of publisher collusion fraud on ad networks.

“The increased diligence of online ad networks to detect and block invalid traffic sources has contributed to the decline in the overall click fraud rate this quarter,” said Tom Cuthbert, president of Click Forensics. “However, increasingly sophisticated attacks, such as publisher collusion fraud, continue to be a concern. Ad networks should pay close attention to such threats in the coming months.”

The data in Q2 also showed that many of the new click fraud schemes identified last quarter continue to increase in number and sophistication. Publisher collusion fraud was one example. This scheme occurs when online publishers use rotating IP-addresses or botnets to click ads on their own sites in order to generate inflated commissions from unprotected ad networks. Ad networks have difficultly differentiating such attacks from valid clicks.

Unemployment for people with disabilities reached its highest rate in nine months, according to a quarterly study by Allsup.  At the same time, the Allsup Disability Study: Income at Risk shows the number of people applying for Social Security Disability Insurance (SSDI) benefits continues to climb, and the backlog of SSDI claims continues to slow people’s ability to receive their financial benefits.

Specifically, the quarterly Allsup study shows that for the second quarter of 2009, people with disabilities experienced an unemployment rate 53 percent higher than people without disabilities. Specifically, the unemployment rate for the second quarter averaged 13.6 percent for people with disabilities, compared to 8.9 percent for people with no disabilities, according to non-seasonally adjusted data from the U.S. Department of Labor.

For June, the unemployment rate for people with disabilities reached 14.3 percent, the highest since the Bureau of Labor Statistics (BLS) began reporting data on unemployment rates for people with disabilities last October. This compares to a 9.5 percent unemployment rate for people with no disabilities, also the highest during this same period. However, people with disabilities consistently continued to experience higher rates of unemployment.

BLS also reported that during June, three in 10 of the unemployed had been jobless for 27 weeks or more.

“People who may have been holding on to their jobs despite mild disabilities in the early stages of the recession may now have been out of work for several months,” said Paul Gada, personal financial planning director for Allsup. “Their health may have continued to deteriorate with the stress of no income and potentially no health insurance coverage further exacerbating their condition and putting them at significant financial risk. They may now be recognizing that even if they could find work, they are physically unable to work.”

The Allsup Disability Study: Income at Risk shows that the number of people with disabilities unable to work and applying for SSDI continues to climb. Disability applications rose to more than 727,000 in the second quarter of 2009, up 7 percent from the first quarter. Year to date there has been a 22-percent jump in initial disability applications compared to year to date 2008.

The number of people applying for Social Security disability benefits has a direct impact on the ability of the Social Security Administration (SSA) to process claims. For example, Allsup’s analysis of the Social Security disability 2008 backlog showed that more than 1.4 million people had applications pending. The average time to receive an award was more than 2.5 years (942 days). For the hundreds of thousands awaiting a review of their case by an administrative law judge, the wait can take two to four years, based on additional Allsup analysis.

“It’s crucial that people know the SSDI eligibility criteria before they apply for SSDI benefits,” said Gada. “This helps minimize further bottlenecks in the SSDI process and ensures qualifying people begin receiving monthly SSDI benefits as soon as possible.”

Deciding to Apply for SSDI Benefits

Eligibility for SSDI is determined by the SSA. Generally, applicants are considered disabled by the SSA if:

• They cannot do the work they did previously;
• They cannot do other work because of their disability; and
• Their disability has lasted or is expected to last at least one year, or result in death.

To qualify for SSDI, a person also must have worked and paid into the program (via FICA payroll taxes) for five of the last 10 years and be under retirement age.

“If you do qualify, it’s important to apply as soon as possible and to ensure your application is as thorough as possible,” said Gada. “Delaying the application process or not providing the detail needed will prolong the process and leave you without essential benefits.”

Gada noted that applying for SSDI benefits entails an extensive amount of paperwork. This includes completing an initial Social Security disability application and, in most instances, a detailed activities of daily living questionnaire. This requires detail on the person’s work history and the impact of the disability on his or her day-to-day activities. A doctor must verify information and additional medical exams may be required if there is not enough information to make a decision.

Only 35 percent of initial applications are approved on average, requiring those who are denied to apply for reconsideration and advance further in the SSDI process. Individuals can improve their chances of securing benefits earlier in the process by getting help. For example, more than 54 percent of those who hire Allsup for SSDI representation receive their awards at the initial application. Overall, 98 percent of people that complete the SSDI process with Allsup receive awards.

More than 70 percent of consumers surveyed said they would no longer do business with a company that exposed their sensitive, personal information as result of a data security breach, according to research conducted for Identity Theft 911.

Approximately 77% of respondents said they were “somewhat” or “very” concerned that identity theft could happen to them or someone close to them, and nearly 30% said they had received at least one data breach notification letter in the past two years, with half of those getting more than one letter.

“Businesses have a fiduciary obligation to treat personally identifiable information like assets,” said Matthew Cullina, CEO of Identity Theft 911, America’s leading identity theft resolution and education services provider. “They wouldn’t leave money unprotected, and they should take the same approach with personal data they are entrusted with. Every week, we read about another data breach, and consumers are not only angry, they feel violated when companies do not safeguard their personal information.”

Results of the survey, conducted by GfK Custom Research, include the following:

• If their personal information was exposed, respondents said they would feel “angry” (33%), “violated” (27%), “annoyed” (21%) or “anxious” (14%).
• Depending on their age, 72% to 81% of those surveyed said they were concerned identity theft could happen to them or someone close.
• If their data was exposed, the majority of respondents said they would want: a letter from the company explaining what happened and what was being done to respond (80%); free access to “live” expert fraud specialists providing one-on-one assistance (76%); free credit monitoring tools (70%); and identity theft insurance (55%).

Dow Jones & Company has prevailed in a lawsuit it brought to defend its businesses against unjustified patent licensing demands.  In a case concerning technology to personalize Web sites, a federal district court in Washington, D.C., declared two patents held by Ablaise Ltd. invalid. The court said that although Ablaise generated revenue from one of the patents “it admits that it has done so through a coercive licensing scheme that has more to do with the costs of litigation than the novelty of the patent.”

“Dow Jones vigorously fights unwarranted demands for patent licensing fees,” said Dow Jones General Counsel Mark Jackson.

In 2006, Ablaise demanded that Dow Jones pay a licensing fee to provide personalized content on Dow Jones Web sites. Ablaise claimed those features were possible only by use of its patented technology.

In response, Dow Jones filed a lawsuit against Ablaise asking the court to declare that Ablaise’s patents are invalid or that Dow Jones’s Web sites do not infringe Ablaise’s patents. The court agreed in a decision issued July 15 that the patents are invalid, saying that what Ablaise claimed it had invented was obvious or anticipated by existing technology.

Steven Lieberman of Rothwell, Figg, Ernst & Manbeck represented Dow Jones in the matter.

Performance Designed Products, a video gaming accessory manufacturer, announced today that it has amicably settled its recent patent infringement lawsuit against dreamGEAR.

The lawsuit, filed in April of this year, alleged patent and trade dress infringement by dreamGEAR’s tennis rackets contained in its Soft Sports Kit Tennis Doubles Pack for use with the Wii video game system. Under the settlement, dreamGEAR agreed to cease further production of the accused tennis racket designs, and pay PDP an undisclosed monetary payment. In return, PDP granted dreamGEAR a license to sell the remaining inventory of its Soft Sports Kit Tennis Doubles Pack containing the accused tennis rackets.

“The settlement demonstrates the value of PDP’s intellectual property, which is the result of years of effort in the development of new and innovative products,” said John Moore, PDP’s senior vice president of marketing. “PDP’s NERF Sports Pack received three U.S. design patents alone, one of which was the subject of the lawsuit with dreamGEAR, and PDP has many other patents and patent applications in its portfolio as well.”

PDP recently announced that it sold more than one million units of its NERF Sports Pack in North America in 2008.

More than just unhealthy, California’s increasing girth is crippling the state’s economy, according to a study of the economic cost of obesity in California released today by the California Center for Public Health Advocacy (CCPHA). In just six years, reported economic costs of adult overweight, obesity and physical inactivity have nearly doubled and are now costing California an estimated $41 billion a year.

An update of a 2000 report, the study shows a 33 percent rise in obesity rates contributed to sharp increases not only in health care costs but also in lost productivity. The report is based on the latest available data and scientific research on the relationship between overweight, obesity, and physical activity, and their collective impact on health care expenditures and worker productivity.

“To put this in perspective, the economic cost to California of adults who are obese, overweight and physically inactive is equivalent to more than a third of the state’s total budget,” says California State Controller John Chiang. “Think of the programs we could protect, the children we could educate and the families we could help if we could recapture those dollars by investing in prevention. These figures demonstrate the real and very unsettling financial impact of the obesity epidemic on a California economy already in crisis.”

A leading national health econometrics consulting firm based in North Carolina, Chenoweth & Associates, was commissioned by the California Department of Health Services in 2000 to generate the first cost of obesity study. CCPHA hired the firm to update the study to get a more contemporary picture. Chenoweth and Associates found that overweight and obesity claimed a slightly larger percentage of the annual costs ($21 billion) than did physical inactivity ($20.2 billion). They also predict that the trend for dramatic growth in costs will continue and conservatively project that by the year 2011 costs will climb to $53 billion.

“These rapidly escalating costs paint an alarming picture for our state,” says Dr. Harold Goldstein, executive director of the CCPHA, which commissioned the study. “They underscore the need to build community health and prevention into public policies at every level, from national health care reform and the state’s use of federal stimulus funding to regional growth and local policies that help people to eat healthy food and be more physically active.”

In addition to a new statewide figure, today’s study provides an accounting of obesity costs by county. While it is not surprising that the largest counties have the largest costs, the numbers nevertheless are staggering: Los Angeles County – $11.9 billion; Orange County – $3.3 billion; San Diego County – $3 billion; Alameda County – $2.2 billion; Santa Clara County – $2.1 billion; and Sacramento County – $1.7 billion.

As dire as the report’s findings may be, the authors point out that even small improvements in health can have a considerable impact. A 5 percent improvement in the rate of physical activity and healthy weight over five years could trim almost $12 billion from the state’s obesity costs.

“The obesity crisis may seem overwhelming, but California has successfully tackled big health issues before,” says, Kim Belshé, Secretary of California Health and Human Services Agency, who helped design and lead the state’s nationally recognized tobacco programs. “The key is to establish concrete changes at the federal, state, and local level to make it easier for people to make healthier choices. This study shows that if those changes can help just one Californian in twenty reduce their weight and become more physically active, we could realize significant savings and begin to turn this crisis around.”

Echoing the need to address environmental issues that encourage poor diet was the study’s funder. “There are many communities where it is easier to get a cheeseburger than an apple. Communities such as these are designed for disease because of poor planning and policies that actually contribute to the epidemic,” says Robert K. Ross, M.D., president and CEO of The California Endowment, which funded the study. “In order to address the obesity epidemic effectively we must take a cogent look at what is driving it. We must move toward local, state and federal policies that seek to improve community environments and develop opportunities for physical activity.”

President Barack Obama has signed into law the Credit Cardholders Bill of Rights, but according to a new survey from Credit.com, a third (33%) of consumers still say their card company has recently made one or some combination of the following changes to a credit card account:

• Increased their interest rate 19% (up from 15% in February survey)
• Increased their fees 14%
• Lowered their credit limit 14% (up from 8% in February survey)
• Increased their minimum payment due 12%
• Reduced their rewards program 9%

“This is a defining moment between now and when the law is scheduled to go into effect in February 2010,” says Adam Levin, co-founder of Credit.com and a former director of the New Jersey Department of Consumer Affairs. “Will credit card companies actually be “kinder and gentler” or instead look to squeeze the consumer at every opportunity with a new fee or rate hike?”

LexisNexis, a leading global provider of content-enabled workflow solutions, today announced the launch of its LexisNexis Lend a Hand program to provide free marketing services, networking, and employment resources to lawyers who have been laid off in recent months due to economic hardship facing their former firms. The program is offered through the Martindale-Hubbell business and is available to all U.S.-based lawyers who recently worked for a law firm with more than 50 attorneys and are currently unemployed. Program enrollment will be available through the end of August 2009.

“Lawyers, particularly at large law firms, have borne the brunt of an unprecedented series of law firm layoffs in the past year,” said Dave Danielson, vice president and managing director, Specialized Law Client Development at LexisNexis. “The Lend a Hand program is a free service created to help these attorneys promote their personal brand, build and leverage a trusted professional legal network, and access jobs and employment resources available through Martindale-Hubbell.”

The LexisNexis Lend a Hand program provides a complimentary six-month profile on Lawyers.com – the most popular online legal resource that provides consumers and small businesses with the information they need to find the right lawyer; and on martindale.com – the premier destination for corporate counsel and sophisticated buyers of legal services.

The program also provides free access to Martindale-Hubbell Connected – a global online community designed specifically for legal professionals to quickly connect, network, communicate and collaborate with trusted and authenticated colleagues; and the Martindale-Hubbell Career Center – the one-stop employment resource to help attorneys find legal jobs.