Category Archives: Legal News

Small-business legal group urges Supreme Court to hear property case

By Lydia Wheeler – 10/19/15 11:23 AM EDT

The National Federation of Independent Business (NFIB) Small Business Legal Center is urging the Supreme Court to take a case out of California that questions whether a city can constitutionally force developers to sell certain housing units below market rates.

The case, California Building Industry Association v. City of San Jose, Calif., centers on a city rule that requires developers to set aside 15 percent of all newly constructed residential units for the city to use as affordable housing stock or opt out by paying a fee.

NFIB Small Business Legal Center is asking the Supreme Court to hear the case and reverse the California Supreme Court decision upholding the housing rule.

“Here we have the city of San Jose trying to use its power to bully landowners,” Karen Harned, the group’s executive director said in a news release. “Clearly, the constitution protects private property and the right of landowners to exercise their right to use and sell their property at market rate. The court should stop San Jose and other cities with similar schemes.”

The legal arm of the nation’s leading small-business association said the court should settle the lower court split and follow the legal precedence it set in Nollan v. California Coastal Commission. In that case, the court held that the government couldn’t require a landowner to dedicate property as a condition of a permit approval.

Read Full Article – http://thehill.com/regulation/court-battles/257306-small-business-legal-group-urges-supreme-court-to-hear-property-case

DEA Must Stop Interfering With Legal Medical Marijuana Dispensaries, Federal Court Rules

The judge said the DEA was defying the “language and logic” of the law

In a victory for state medical marijuana programs and patients, a federal court in California ruled Monday that federal authorities may not shut down medical pot dispensaries operating within state laws.

Under Rohrabacher-Farr amendment, which accompanied last year’s spending bill, the Justice Department can not use federal dollars to interfere with state medical marijuana laws and practices, preventing the DEA from pursuing dispensaries and patients, the court ruled, according to the Washington Post.

The decision follows a leaked Justice Department memo that interpreted the amendment as offering protections limited to the actual states, not the individuals and businesses which deal with the day-to-day implementation of marijuana laws. As a result of the DEA’s continued enforcement, several dispensaries have been closed in California, including one owned by the Marin Alliance for Medical Marijuana, the first licensed medical pot dispensary in the state.

Read Full Article – http://time.com/4080110/dea-medical-marijuana-california-ruling/

Zofran Lawsuits Consolidated, Victory for Plaintiffs

. By Jane Mundy

Boston, MABecause so many Zofran birth defects lawsuits have been filed nationwide against GlaxoSmithKline, the manufacturer, a multidistrict litigation (MDL) has been ordered for all pending and future lawsuits – good news for plaintiffs. And attorneys say that the decision to send Zofran lawsuits to Boston is a “victory” for plaintiffs.

The order to consolidate was issued by the U.S. Judicial Panel on Multidistrict Litigation on October 13, 2015. At least 60 plaintiffs nationwide have one thing in common: they are all part of MDL No. 2657, centralized in the District of Massachusetts before US District Judge F. Dennis Saylor.

Zofran lawsuits that were filed in federal court have been consolidated because they have almost the same allegations:

• GSK fraudulently misrepresented Zofran to prescribing physicians about the safety of its anti-nausea drug for pregnant women.

• GSK knew and concealed the drug’s alleged association with serious birth defects, and failed to provide doctors and patients with information regarding this risk.

• GSK marketed the drug to pregnant women off-label, i.e., without FDA approval. (The FDA only approved Zofran to treat post-operative surgery patients, as well as those undergoing certain cancer treatments.)

While each lawsuit in an MDL remains individual, common questions will be raised, i.e., does Zofran cause birth defects and if so, which kinds? Plaintiffs have filed claims alleging Zofran has caused a number of congenital birth defects, including cleft palate, spina bifida and heart defects. A few claims have also been filed alleging hypospadias and even a missing kidney.

Why Boston?

The Panel’s choice is a victory for the families who have sued GSK, according to attorney Michael Monheit, writing in The Legal Examiner (October 15). Monheit said that GSK first proposed a MDL in Federal Court in Pennsylvania, which is close to the drug company’s headquarters. But plaintiffs argued that “few if any Zofran lawsuits had been filed in Pennsylvania” and Boston was a top choice, particularly because Zofran was first linked to a birth defect (cleft palate) by researchers at Boston University’s Slone Epidemiology Center. And five lawsuits have already been filed in Massachusetts, four of them already assigned to Judge Saylor.

Full Article Read Here – http://www.lawyersandsettlements.com/articles/zofran-birth-defects/glaxosmithkline-gsk-us-district-judge-f-dennis-20980.html#.ViTB12SrQy4

 

Cybercrime Is The Modern-Day Mafia

Organized crime is nothing new. Mob gangsters and mafia families have been romanticized as the stuff of legend since the days of Prohibition. Just as the Internet has transformed the way we access information, shop, interact with each other, and conduct business, it has also completely altered the world of organized crime.

Crime is no longer confined to traditional brick and mortars–it’s all online. While the information and payout criminals are looking to attain are a bit different than in decades past, these are still thugs and true criminals. Now, however, they have the shield and anonymity of the Internet to hide behind.

It took a while for organized crime to adapt to cybercrime. I suppose it was a generational issue just as adoption of the Internet and cutting edge technologies are for the rest of society. Entrenched crime bosses probably shunned the Internet in favor of the proven business model they had used for decades. As younger criminals elevated through the ranks to take command, though, they saw the potential for crime on a massive scale with significantly less risk of arrest or physical harm.

It’s also possible that organized crime online is more or less organic—a logical evolution of Internet crime as cybercriminals band together to pool resources. The reality is probably somewhere in the middle—a combination of grassroots cybercrime organizations and traditional mafia operations transforming to embrace the Internet.

Full article read here – http://www.forbes.com/sites/tonybradley/2015/10/16/cybercrime-is-the-modern-day-mafia/

Nevada Gaming Says Daily Fantasy Sports Is Gambling Under State Law, Illegal To Offer Without State License

from – http://www.legalsportsreport.com/5173/nevada-says-dfs-is-gambling/

Full text of statement

Over the last several months, Nevada Gaming Control Board (Board) staff has analyzed the legality of pay-to-play daily fantasy sports (DFS) pursuant to the Nevada Gaming Control Act and the regulations adopted thereunder. I further asked the Gaming Division of the Office of the Nevada Attorney General to perform a legal analysis as to whether DFS activities conflict in any way with Nevada law. Based on these analyses, I, along with Board staff, have concluded that DFS constitutes gambling under Nevada law. More specifically, DFS meets the definition of a game or gambling game pursuant to Chapter 463 of the Nevada Revised Statutes. Moreover, because DFS involves wagering on the collective performance of individuals participating in sporting events, under current law, regulation and approvals, in order to lawfully expose DFS for play within the State of Nevada, a person must possess a license to operate a sports pool issued by the Nevada Gaming Commission.

Further, a licensed operator who offers DFS must comply with all laws and regulations that apply to licensed sports pools. Therefore, since offering DFS in Nevada is illegal without the appropriate license, all unlicensed activities must cease and desist from the date of this Notice until such time as either the Nevada Revised Statutes are changed or until such entities file for and obtain the requisite licenses to engage in said activity. Although Nevada gaming licensees who have received approval to operate a sports pool may expose DFS for play themselves in Nevada (in compliance with all applicable statutes and regulations), such licensees should exercise discretion in participating in business associations with DFS operators that have not obtained Nevada gaming approvals. While this Industry Notice is intended to provide clear guidance as to Nevada law, Nevada licensees wishing to conduct business with DFS companies should also conduct thorough and objective reviews of DFS activities under the laws of other states and any applicable federal laws.

Nevada AG’s opinion

A day after the NGCB statement, the attorney general’s office offered its legal analysis, in full. You can read it here. It was first reported by Reuters’ Liana Baker.

The takeaway was not a surprise, given the NGCB statement:

In short, daily fantasy sports constitute sports pools and gambling games. They may also constitute lotteries, depending on the test applied by the Nevada Supreme Court. As a result, pay-to-play daily fantasy sports cannot be offered in Nevada without licensure.

That conclusion has a footnote that mentions two separate points:

  • DraftKings CEO Jason Robins once stated the concept for DraftKings was ‘‘almost identical to a casino.’’
  • DraftKings received a gaming license in the U.K. but didn’t refer to it in that manner in publicizing it: “It appears that DraftKings recognizes the appearance of inconsistency between its position that it should be unregulated in the United States and its decision to submit to gaming regulation in the United Kingdom.”

Here are points of interest from the analysis. Note that analysis is based on Nevada law:

Daily fantasy sports usually = sports pools, sometimes lotteries

Under Nevada law, the AG determined that DFS contests are sports pools, generally:

In order to determine if daily fantasy sports operators are operating a sports pool, one must determine (1) whether a wager is present; (2) whether the wagering is done on sporting events or other events by any system or method of wagering; and (3) whether daily fantasy sports operators are in ‘‘the business’’ of accepting wagers.

Daily fantasy sports meet all of these requirements and, thus, constitute ‘‘sports pools’’ under Nevada law. This conclusion is consistent with the views of one of the leading attorneys representing daily fantasy sports operators, who stated that ‘‘fantasy sports’’ was ‘‘a significant evolution in the realm of sports betting.’’

Some forms of DFS could be an illegal lottery, however:

Daily fantasy sports may also constitute illegal lotteries under NRS 462.105(1) depending on the legal question of whose skill is being assessed and the factual question of whether skill or chance is dominant. If the skill being assessed is that of the actual players rather than that of the fantasy sports team owners, then daily fantasy sports constitute illegal lotteries. If the skill being assessed is that of the owners, then there is a factual question as to whether the skill in selecting lineups predominates over chance.

Skill vs. chance

Nevada basically said the amount of skill required for DFS was not germane:

In the context of addressing the legality of fantasy sports, the question of whether skill or chance is involved is often deemed important. However, under Title 41 of the Nevada Revised Statutes, the determination of whether an activity involves skill, chance, or some combination of the two, is relevant only when analyzing lotteries. By contrast, the determination of whether an activity constitutes a gambling game or a sports pool under Nevada law does not require analysis of the level of skill involved.

It is important to note that while Nevada gaming regulators clearly have authority to regulate games of skill, the present analysis does not concede the argument that daily fantasy sports are predominately skill-based.

The UIGEA

The Unlawful Internet Gambling Enforcement Act is often cited throughout the industry as a source of its legality. The AG shot that down as a rationale in Nevada:

B. UIGEA Did Not Legalize Fantasy Sports

That being said, a point of clarification is in order because there are some operators and commentators who have taken the position that the Unlawful Internet Gambling Enforcement Act of 2006 (‘‘UIGEA’’) 14 legalized fantasy sports within the United States. Given the explicit language of UIGEA, that position is simply untenable, and often at odds with what those same operators and commentators have said in the past.

In short, UIEGA is irrelevant to determining the legality of daily fantasy sports under Nevada law.

DraftKings uses betting terms

The Nevada AG’s office likely did a massive amount of research to link DFS sites to gambling. In addition to the Robins “casino” reference above, this was a part of the report:

 

full article here – http://www.legalsportsreport.com/5173/nevada-says-dfs-is-gambling/