by Long Island Attorney Paul A. Lauto, Esq.

The United States Supreme Court has delivered a blow to Obamacare in the case of Burwell v. Hobby Lobby Stores, Inc. in a 5-4 split decision.  At issue in the case was the Affordable Care Act's (ACA) provision mandating employers provide employees with cost free contraception as part of their health insurance plans.  Some 20 different FDA approved forms of contraception were included under the ACA provision, including the controversial "morning after" pill.

In its decision the court found that as applied to closely held corporations, the ACA provision violated the Religious Freedom Restoration Act (RFRA) of 1993.  Such violation was held to exist in that the government was unable to satisfy the RFRA's least restrictive standard, by failing to show that there was a lack of other means to achieve the provision's desired goal, "...without imposing a substantial burden on the exercise of religion."

Noteworthy is that Chief Justice Roberts, who previously was the swing vote in upholding Obamacare as a whole on the basis that it was essentially a tax, voted with the majority against the provision.  Unfortunately the Affordable Care Act is quickly becoming one of the most litigious bodies of law ever enacted in our country, making it anything but affordable.

Long Island Lawyer
Paul A. Lauto, Esq.
www.liattorney.com

by Long Island Attorney Paul A. Lauto, Esq.

The United States Supreme Court reversed a lower court decision and held in favor of prayer in the case of  Town of Greece, New York v. Galloway.  The case centered on prayers conducted at the beginning of the monthly Town Board meetings in Greece, NY.  Citizens that initially filed suit, alleged that the prayers violated the First Amendment's Establishment Clause by showing a preference for Christians.  In a split decision of 5-4, the U.S. Supreme Court did not agree.

In the court's majority opinion by Justice Kennedy, the court stated that there has been a long established history and tradition of prayer in Congress and State Legislatures.  That the type of opening prayer held at the Town Board meetings at issue, falls under the umbrella of a ceremonial or legislative prayer.  The court continued by stating that legislative prayer, "...lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society."   Accordingly, the court did not find any First Amendment violation and held that the prayer at issue was permissible.

Many people believe that the high court's decision failed to uphold the  "separation between church and state" as set forth in the Constitution.  In fact, such language is not actually in the Constitution.  The First Amendment states that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... ."  It was Thomas Jefferson that wrote the words of separation between church and state in a letter he penned on January 1, 1802, in his interpretation of the First Amendment.  So at least for now, in God we (and the Supreme Court) still trust.

Long Island Lawyer
Paul A. Lauto, Esq.
http://www.liattorney.com

by Long Island Attorney Paul A. Lauto, Esq.

The American Meat Industry (AMI) has succeeded in delivering yet another blow to consumers, by getting the U.S. Court of Appeals to vacate a recent decision in favor of the USDA's COOL (Country of Origin Labeling) regulation.  The result will be the re-hearing of the case in May, by all eleven judges in the circuit.

The USDA took a stand for consumers by implementing COOL, which requires  labeling of certain meats to disclose the countries where cattle was born, raised and slaughtered.  One of the premises behind the regulation is that since cattle may be born, raised and slaughtered in three different countries, consumers have the right to know where their meats are coming from.  The AMI submits that COOL violates the first amendment by compelling speech that is factual in nature and of no health benefit to consumers.  

The outcome of this case is relevant to all consumer label movements, as it centers on the consumer's right to know what is in the food we eat.  In the U.S., many harmful food ingredients are hidden from consumers under the toxic veil of a food label.  The USDA, which is far from perfect, implements a regulation that truly favors consumers, only to be brought down by the AMI.  Perhaps the adage, "No good deed goes unpunished" is true after all.

Long Island Lawyer
Paul A. Lauto, Esq.
www.liattorney.com 

by Long Island Attorney Paul A. Lauto, Esq.

The NYS Court of Appeals recently upheld the imposition of the MTA tax as it applies to, among others, self-employed individuals of Nassau and Suffolk Counties making over $50,000 per year.  This decision effectively adds insult to injury for the Long Island small business person and applies whether or not the mass transit system is being utilized.

Many can attest to the fact that running your own business on Long Island, is a very difficult task in today's economy.  The self-employment (SE) tax alone is a huge financial burden to the self employed, as it requires twice the payment for social security tax (12.4%) than that paid by regular employees (6.2%).  Combined with Medicare, the total SE tax comes to approximately 15.3%.  Now add the unjust MTA tax of .34% of net earnings on top and it stings like salt in a wound.  This especially rings true for the self-employed of Long Island who do not even use any of the services provided by the MTA.

One could credibly argue that the MTA tax was created solely to bail out the MTA of its financial troubles, as it raises over one billion dollars per year.  Further, that self-employed small business persons, who are the back bone of American business, should not have to bail out the MTA for its failed business.  Wouldn't it be nice if the self-employed could create a tax on others to solve their financial problems?  But, it doesn't work that way.  The self-employed of Long Island and around the country are getting hammered on every turn, from creative new taxation to back breaking increases in health insurance premiums.  If our government doesn't stand up for the self-employed soon, it may find one of its main life blood sources depleted with little or no chance for revival.  

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

One year ago to this day, we posted a blog about the case of Davids v. Novartis Pharmaceuticals Corp.  Plaintiff Barbara Davids, suffering from breast cancer, commenced taking the drug Zometa which is  manufactured by Novartis Pharmaceuticals Corp.  The purpose for taking the drug was to suppress metastatic damage to her bones.  Thereafter, Davids developed osteonecrosis of her jaw, which her doctors opined was caused by the drug Zometa.  As a result of her osteonecrosis, Davids was compelled to undergo multiple procedures, including but not limited to, the removal of portions of her jaw and denture implantation as replacement for lost teeth.  Davids claimed that after years of procedures she was rendered disfigured, anxiety stricken, has mastication disfunction and permanent facial parasthesia.

The jury found that plaintiff's osteonecrosis was caused by the drug Zometa, that defendant failed to adequately discose the drug's potential hazards and thereby breached Zometa's implied warranty of merchantability.  $10 million dollars was awarded in punitive exemplary damages, $350,000 was awarded for past pain and suffering and $100,000 was awarded for future pain and suffering, for a toal award of $10.45 million. 

Upon motion by defendant, United States District Court Judge Arthur D. Spatt has reduced the jury award of punitive damages by 91 % from $10,000,000  to a mere $900,000.  This represents a clear victory for Big Pharma as the new punitive award is comparable to a mere slap on the hand.  One main purpose of punitive damages is to punish the offending party for its reprehensible behavior, so as to prevent recurrence.  Unfortunately, making a big pharmaceutical company pay only $900,000 is tantamount to almost no punishment at all.   A cost analysis would likely reveal that such a minimal award, is likely to encourage recurrence of the offending act instead of discouraging it.

In all fairness to Judge Spatt, an ill conceived New Jersey law did limit the amount of punitive damages to five times the compensatory award.  In this case, that would set the maximum punitive award at 2.25 million dollars.  Therefore at the very least, until New Jersey's self defeating law limiting punitive damages is expunged from the books, the punitive damages should have been reduced to no less than the maximum allowed by law.  Evidently, the power and reach of Big Pharma is both far and wide.

Long Island Lawyer
Paul A. Lauto, Esq. 

by Long Island Attorney Paul A. Lauto, Esq.

Steve Lipsky of Weatherford, Texas, was a happy homeowner until 2010, when he discovered that his water well was contaminated with gas.  The contamination was so widespread, that Mr. Lipsky was able to light his water on fire and did so for official demonstration purposes only.   As a result of the gas contamination, Mr. Lipsky was forced to shut off the well to his house and import water at an average cost of $1,000 per month.  

In 2011 the EPA determined that the cause of Mr. Lipsky's well contamination, was the drilling activities of Range Resources at a nearby fracking facility.  Range Resources, instead of compensating Mr. Lipsky for his damages, decided to sue Mr. Lipsky for more than three million dollars alleging defamation.  In October 2013, the Fort Worth Court of Appeals ruled that Range Resources may move forward with their defamation suit, which claims that Mr. Lipsky misled the public about being able to set his water on fire.  Mr. Lipsky's battle has been a high stakes game of intimidation, compromised health and judicial bias.  Although Mr. Lipsky continues his legal fight against Range Resources, capitulation may be near as his financial well is running dry.  

In the state of New York, now that Governor Cuomo is seriously considering the use of hydraulic fracturing, residents fear that they too will soon be in the battle of their lives.  Many are worried that Governor Cuomo will fail to wake up and smell the fracking coffee under his nose.  It appears that we now live in a country ruled not by the President, but by corporate domination and greed.  What will become of the Steve Lipskys of America?  Do the words equity and justice, no longer have any significant meaning?  Perhaps we have simply evolved into a current day corporate form of natural selection.  The problem is, it is unlikely that any of us will be fit enough to survive.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island Attorney Paul A. Lauto, Esq.

The United States Environmental Protection Agency (EPA) is a government agency entrusted to protect, preserve and prevent harm to our environment.  It is perhaps one of the most important agencies designed to serve the people, much like the United States Food and Drug Administration (FDA).  However in our current day and age, whether one is talking about protecting the health of our environment or the health of our people, it appears that corruption and greed runs deep. 

Gordon McDonald was an EPA Project Manager entrusted with the cleanup of 2 New Jersey superfund cleanup sites (hazardous waste sites).  A New Jersey jury recently convicted McDonald on 10 counts of fraud, including but not limited to, rigging contractor bids and accepting kickbacks in the amount of 1.5 million dollars.  In addition to McDonald's conviction, 8 other individuals and 3 companies pleaded guilty to co-conspiracy charges.  Assistant attorney general Bill Baer declared victory by stating, "Today's guilty verdict sends a clear message that corrupt purchasing officials will be held accountable for engaging in fraudulent schemes designed to undermine the government's competitive contracting practices." 

Many people believe that our governmental agencies are unadulterated and are all we need to protect our environment, food and drug supply.  However, this most recent conviction casts doubt on the credibility of governmental agencies designed to "serve the people."  From the food we eat, to the medicine we ingest, to going for a swim in the Gulf of Mexico, if you think it's safe just because the governement says so, then it would serve your best interest to think again.

McDonald is scheduled for sentencing on January 6, 2014 and faces up to 59 years in prison and over 1.5 million dollars in fines.

Long Island Lawyer
Paul A. Lauto, Esq.

by Long Island ttorney Paul A. Lauto, Esq.

The meat industry has enaged in the longstanding practice of commingling meat parts from different animals and even from different countries, before packaging the meat for sale.  This practice has been regularly performed without any label notice to consumers.

To its credit, the USDA passed a regulation known as COOL, that requires meat producers to list the meat's country of origin on the label.  The regulation also requires that the label list where the animal was born, raised and slaughtered, if these locations are from different countries, as is often the case.  

In that the meat industry was apparently adverse to complying with COOL and  the consumer's right to know, they brought suit against the USDA.  Eight groups led by the American Meat Institute, filed suit claiming that the regulation violated the meat industry's First Amendment free speech rights.  The meat industry argued, that "Because there is no legitimate justification for the new 'Born, Raised, and Slaughtered' regime, and because these new rules will impose significant burdens on and radically restructure the way meat is produced and packaged in this country, defendants' COOL regulations violate the First Amendment, which prohibits compelled-speech regimes in the absence of a substantial government interest." 

US District Court Judge Ketanji Jackson rejected the meat industry's argument stating, "It would be one thing if plaintiffs were making a substantiated allegation that the demands of complying with the final rule's segregation and labeling requirements are in-and-of-themselves impossible to meet without destroying their companies... but here, to the contrary, plaintiffs' declarants appear most concerned that they will ultimately lose future business because others may respond to the new labeling rules and react in a manner that may ultimately affect their companies negatively."  In her 76 page decision Judge Jackson ultimately concluded that, "The plaintiffs' failure to demonstrate either a likelihood of success on the merits or irreparable injury warrants dismissal."

This decision signals a small victory for consumers and supports the rising belief in our country that full disclosure food label laws are needed.  Unfortunately, it does nothing to protect consumers from what is done to the animal and meat from the time of birth to packaging, but at least it is a step in the right direction.

Long Island Lawyer
Paul A. Lauto, Esq.






  

by Long Island Attorney Paul A. Lauto, Esq.