Identity Theft

With Bank of America releasing the news over the weekend that it, too, has misplaced or lost personal electronic data, the scope of identity theft continues to explode.

A senate investigation committee beginning to look into the topic Thursday issued a press release in which U.S. Senator Charles Schumer pointed at WestLaw's "People-Find" feature, saying the company's security over the feature was lax. "Anyone who pays 'Westlaw,' the senator said, gets access to millions of social security numbers from Paris Hilton's to Dick Cheny's without their knowledge or permission."

A letter sent on the 24th. asks WestLaw to disable access to social security numbers from that feature.


Prophetically, a CNN article back on Jan. 24th. commented experts as having said that "cyber-crime was ging to be a bigger threat than cyber-terror."

ChoicePoint

Over this past President's Day weekend, the story probably-- and maybe rightly so-- making the most media noise was the identity thefts at ChoicePoint.

A USATODAY article last Friday reported the attorney generals of 18 states, including Ohio, "urging" ChoicePoint to notify those affected by the break-in. A U.S. Newswire article focused on the "fraud hightlighting the need for stronger ID theft safeguards, 11 states considering security freeze rights for consumers, and two others requiring companies to notify customers about security breaches." Senate Bill 115, introduced Jan. 24th., would require Federal agencies, and those engaged in interstate commerce in possession of electronic data containing personal information, disclose any unauthorized acquisitions of such information."

This morning, MSNBC reported that the incident had, in fact, prompted a Senate investigation into the broader issue of data brokers in general, this having been brought about by a call from Senator Patrick Leahy, last Tuesday, for such hearings; and, for the first time now, others are seeking a GAO probe to widen to the potential for terror risks.

Also on Tuesday, Reuters/MSN Money reported that a California woman had filed an action against ChoicePoint in Los Angeles Superior Court seeking a class-action status, claiming that "at least 145,000 people have suffered damages of less than $75,000 each."

Class Action Fairness

Last Friday President Bush signed the Class Action Fairness Act of 2005 into law, but some don't think it goes far enough to end abuses in class action litigation.

An article on Law.com yesterday attributes part of the problem, at least, to what 7th. Circuit Judge Frank Easterbrook back in 2002 referred to as "central planning"-- that "one judge is no more likely to set the right price for tens of thousands of lawsuits than Soviet central planners did for Ukrainian wheat or Lada cars." (See In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 288 F3d 1012)

The article also promoted Rep. Christopher Cox's soon-to-be-introduced "Right to Choose Your Own Lawyer" bill, intending to "break class action suits into 'smaller parcels', and put more control in the hands of victims."

This morning there's an article about the Supreme Court's now considering the issue of "diversity jurisdiction" in the case of Roche v. Lincoln Property Co.

Supreme Court eminent domain cases

The Supreme Court heard arguments from Kelo v. New London, an eminent domain case, yesterday, and while a Legal Times article this morning notes the sympathies of the justices was with the community property owners, it's less certain whether that'll be enough to translate into a favorable decision for them.

"It's been 50 years since the Supreme Court in Berman v. Parker adopted an expansive view of eminent domain," a Post-Gazette article said yesterday, highlighting some landmark cases over the past 20 years-- including the recent Norwood v. Burton case in Ohio's 1st District Court of Appeals-- but what makes this different is the City's intent to generate "much needed revenue" as opposed to the more typical housing or hospital project.

The two cases were the topic of an Enquirer article yesterday, and as part of an Institute of Justice posting. A motion for injunctive relief was granted by the Ohio Supreme Court yesterday in similar cases, City of Norwood v. Horney, and Norwodd v. Gamble.

"Drugged Driving" legislation

The Ohio Senate yesterday passed a bill "prohibiting the operation of a vehicle or vessel if a statutorily specificied concentration of amphetamine, cocaine, heroin, L.S.D., marihuana.... is present in the operator's blood or urine."

The bill does not change penalties for those convicted of operating a vehicle under the influence of drugs or alcohol, more commonly known as DUI.

Ohio's Medicaid Use

Article in this morning's Enquirer says that Ohio is one of only nine states that haven't asked the federal government to use Medicaid funds for assisted living for senior citizens. That may change as lawmakers say they're more open to Gov. Taft's call for such a program.

House Bill 43 would allow people already covered by Medicaid and are either living in nursing homes or receiving home care assistance from the state's Passport program participate.

New Ohio Laws

Governor Taft signed two bills into law which had been in the news the past couple of days.

First of all, was what has been being referred to as "Ohio's Patriot Plan," which is going to provide certain financial "buffers" for men & women on active duty in the armed forces and their immediate families. The bill was modelled after one in New York, and several other states, including Alabama, New Jersey, Pennsylvania, Rhode Island, Illinois, and Iowa, have similar legislation in the works.

Secondly, coinciding with the FDA's plans to create an independent drug safety board, House Bill 377 "requiring the State Board of Pharmacy to create a drug database that will monitor the use of prescription drugs"

Phishing, Identity Theft & Court Cases

Busy day.

California authorities have arrested a suspect in the identity theft scheme that broke Monday in which ChoicePoint's database was illegally accessed, estimating that at least 750 fraud victims have already been identified, but that the scope of the endeavor is almost certainly nationwide. ChoicePoint is a private agency established in 1977, that has become an "all-purpose commercial source of personal information about Americans."

The National Association of State Chief Information Officers has issued a 15-page report entitled, "Welcome to the Jungle: The State Privacy Implications of Spam, Phishing, and Spyware" which some of you might find worthwhile.

And, an MSNBC.com article Monday reported that "what authorities are calling one of the biggest consumer fraud cases ever prosecuted, alleged members of New York's Gambino family pleaded guilty to conspiracy & fraud charges stemming from an Internet and phone billing caper that bilked consumers out of more than $650 million between 1996 and 2003."

Sentencing Guideline Decision Not Retroactive

Lawyers' Weekly, USA, yesterday (subscription required) carried an article reporting that the U.S. 7th. Circuit Court of Appeals in McReynolds v. U.S. (No. 04-2520) held the Supreme Court's recent decision in "Booker" was not retroactive.

Class-action Reform Update

Back on Feb. 7th., an article in the National Law Journal (subscription) made the comment that "As Congress again prepares to alter the nation's class-action landscape, the Supreme Court will be considering another type of class action reform in two challenges with potentially hugh implications for the litigation of multi-party actions in federal court."

A Law.com article last Friday reported the Senate's passage of their version of this legislation, SB 5, which now goes to the House of Representatives sometime this week or next. Additional background and information is available on the Senate's website. The House's version is HB 516.


Exxon Mobil Corp. v. Allapattah Service (No. 04-70) is a breach of contract case from the 11th. Circuit with damages potentially reaching $1.3 billion with interest. The case, and docket information are available on the Supreme Court's site.

The second case, Ortega v. Star-Kist Foods (No. 04-79) is a personal injury case from the 1st. Circuit Court of Appeals. The docket for Ortega is here posted.

The two cases have been consolidated, and are being scheduled to be heard on March 1, 2005

FCC Rejects Digital Broadcast Rule

Upholding a 2001 ruling that said cable companies only had to carry a single digital channel per station, ABC News this morning reported that the FCC again yesterday rejected a request by broadcasters to require cable and satellite operators carry multiple digital channel offerings from local TV stations.

FCC press release.

9th Circuit Maps Path for Sentencing Issue Cases

As the repercussions from Booker/Fanfan are becoming more common now, the 9th. Circuit Court of Appeals according to a Law.com article this morning, ruled Wednesday that "the Supreme Court's ruling on federal sentencing guidelines applies to most, if not all, cases currently on appeal."

The opinion, U.S. v. Ameline, is said to be important because it's the first sentencing decision since the Booker the 9th Circuit has rendered.

Cell Phone Spam

Article on CNN.com htis morning telling of The Federal Trade Commission last Monday publishing a list of domain names to which telemarketers may not send e-mail without prior permission from cell phone subscribers.

FCC press release.

In a related article, the Washington Post (registration required) has a story about Bagle, "one of countless e-mail worms unleashed onto the Internet in 2004," but one which "offerred security experts a rare glimpse into the thriving economic & operational ties between Internet criminals and virus writers."

Child Labor standards

The Department of Labor has announced significant new revisions to Fair Labor Standards Act child labor rules, taking effect February 14th..

The new rules were published Dec. 16th. in the Federal Register five years after first being proposed. Additional information & guidance on these and other rules and standards can be obtained on the Department of Labor's website "e-laws adviser."

"Foreign Comformity"

After an article in the January 2005 issues of the ABA Journal ("Flying Under the Radar," by Molly McDonough) the Bar Association in an article on this morning's Law.com is "urging states that don't admit foreign lawyers to practice to change their ways." Foreign lawyers have already set up shop in the 24 states that allow them, but there's a fear that, if the remaining states don't follow suit, U.S. lawyers will be tossed out of other countries in retaliation.
"Meanwhile," the article continues, "even in the face of reported pressure from the federal government, some in the legal community are steadfastly calling the issue a states' right matter."

2nd Circuit Gives Guidance on Sentencing

The Supreme Court's decision last month in Booker/Fanfan, "does not leave trial judges with the 'unfettered discretion' to sentence as they please," the 2nd. Circuit Court of Appeals said Wednesday.

"We think it more consonant with the day-to-day role of district judges in imposing sentences , and the episodic role of appellate judges in reviewing sentences, especially under the now applicable standard of 'reasonableness' to permit the concept of 'consideration'... to evolve as district judges faithfully perform their statutory duties," 2nd. Circuit Court Judge Jon O. Newman said.

Law.com has an article on the decision this morning. (U.S. v. Crosby, case 03-1675)

Sentencing Case News

Following the U.S. Supreme Court's "Booker/Fanfan" decision at the beginning of the month, one of the questions being raised was what affect that decision is going to have on state courts. A National Law Journal article on Jan. 17th. (subscription required) related that "appeals courts were going to hold the keys to sentencing," and that definitions of 'reasonable' were going to have to be "played out in the circuits."

A Lawyers' Weekly, USA article this morning relates the Idaho Supreme Court's holding that "a state sentencing scheme that gives judges discretion in sentencing doesn't violate the Sixth Amendment." ( State v. Stover, Idaho Supreme Court No. 30313, Jan. 6, 2005)

Also yesterday, the U.S. 6th. Circuit Court of Appeals affirmed in part a Michigan Western District's holding in a possession with intent to distribute case, but vacated the district court's sentence as a 6th. Amendment violation. (U.S. v. Oliver, Case No. 03-2126).

Identity Theft

"Americans lost at least $548 million to identity theft & consumer fraud last year according to Federal Trade Commission statistics released Tuesday.

FTC also has posted a 71-page report entitled "National & State Trends in Fraud & Identity Theft: January-- December 2004" summarizing its findings.

MSN's search engine

Microsoft's two-year venture in revamping its MSN search engine is complete and has officially gone live, it was announced Monday.

Articles about the new search engine were posted in Beta News, Search Engine Watch, and Search Engine Guide.

Anatomical Gifts per Living Wills

The Ohio State Bar Association has an announcement concerning Substitute House Bill 392, which became effective Sept. 16, 2004.

"As of Dec. 15th., advance directive forms have to reflect changes made through this law." For the intent specificed within the living will to be honored, the will form has to include a portion, before the signature line, spelling out the individual's intent to make such gifts. A donor registry enrollment form that an individual making an anatomical gift sends to the Bureau of Motor Vehicles must also be included.

Local Zoning

"In the latest chapter in a 2-year dispute," a Enquirer article yesterday related, opponents of new zoning legislation content passage would hurt local governments' efforts to regulate home construction.

On November 5th., House Bill 148 gave townships and counties the ability to make residential zoning decisions based on "comfort, convenience, prosperity, and general welfare." Now, the Ohio House has tacked on a measure to Senate Bill 18 that would remove that power.