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Legal     1 - Duke Energy Employee Advocate

Legal - Page 20

"Put your trust in a corporation at your own peril" - Employee Advocate

NC Judges Free to Shakedown Lawyers?

Employee Advocate – – October 18, 2003

There is a concern that a new conduct rule will allow North Carolina judges to shakedown attorneys, according to The National Law Journal. This comes at a time when a North Carolina law goes into effect to remove politics from judicial elections. North Carolina judicial candidates will now have the widest latitude in the nation to conduct freewheeling campaigns.

North Carolina judicial candidates will be able to ask lawyers directly for contributions. They will be allowed to promise to rule in certain ways if elected!

The North Carolina Supreme Court’s six Republicans and one Democrat unanimously adopted the changes. They did not invite lawyers or judges to review and comment on the new rule.

The North Carolina Association of District Court Judges sent the Supreme Court a resolution asking that the changes be rescinded. The resolution stated that the revision “severely compromises the appearance of judicial impartiality and fosters the public perception that politics play an essential role in matters of judicial conduct.”

By all means the appearance of judicial impartiality must be maintained. We would not want a public perception that politics could possibly play an essential role in judicial conduct!

Cynthia Gray, director of the American Judicature Society's Center for Judicial Ethics in Chicago, said that the N. C. action goes further than the U.S. Supreme Court in Republican Party of Minn. v. White, 536 U.S. 765, in 2002. That ruling struck down prohibitions against judicial candidates giving views on controversial topics. Ms. Gray also said that the N. C. rule change goes further than "any subsequent federal court decision, or any subsequent code revision by any other state supreme court."

North Carolina judicial elections will be nonpartisan, starting next year. Supreme Court and Court of Appeals candidates will be eligible for public funding.

Judge James Wynn of the state Court of Appeals, chairman of the American Bar Association's Working Group on the First Amendment and Judicial Campaign Speech, had this to say: “Many of these changes tear down the differences between judges and legislators. If you break us down to be no more than common politicians, I fear that will damage the integrity of the judiciary.”

Roy Schotland, of the Georgetown University Law Center, asked “Does the judge ask the parties for a contribution before oral argument or after oral argument? Does he pass the hat in court?”

The rule previously at least required a Chinese wall between the candidate and the fund raising. Candidates had to set up a committee to raise money.

But Chief Justice Beverly Lake Jr. admitted “You really don't remove yourself much when you set up a committee and have someone ask for you. It's a façade.”

Supreme Court Pension Win

Employee Advocate – – October 10, 2003

Ellen E. Schultz reported in the Wall Street Journal that the US Supreme Court sided with Xerox employees who have suffered cash balance pension plan losses. The High Court refused to issue a stay of an appellate court ruling that its cash balance pension plan underpaid retirees.

Justice John Paul Stevens rejected the Xerox stay request in Berger v. Xerox. Xerox is running out of options, and may have to start paying about $256 million to retirees who were shortchanged on their pensions. Xerox may be getting the drift. It took a $183 million after-tax charge in the first quarter, anticipating losing the Supreme Court appeal.

The Pension Train

Enron Pension Lawsuit

Employee Advocate – – October 3, 2003

Current and former employees will be allowed to file a pension lawsuit against Enron, according to the Wall Street Journal and the Associated Press. The lawsuit contends that Enron did not meet its fiduciary duties in administering the pension plan.

Enron and former CEO, Kenneth Lay, requested that the claims be dismissed. U.S. District Judge Melinda Harmon denied the motions on Wednesday.

Eli Gottesdiener, employee attorney, said “It's just a really magisterial effort and the good news for us is she adopts our analysis and she agrees with us.”

The ruling could lead to greater protections for 401(k) and other retirement plans. Attorneys said it and other recent rulings in similar cases could have a significant impact on the benefits industry.

Recently, pension lawsuits were allowed to proceed against the Williams Cos. and WorldCom Inc. Fiduciaries may not treat employee pension funds as their own personal piggy bank.

Enron was the ring-leader in the deregulated energy trading money-grab. Enron met bankruptcy. Many of the greedy corporations that followed Enron came to the brink of bankruptcy. Duke Energy was among the corporations suffering from Enron envy.

Imitating Enron was a financial disaster for Duke and others. The price of Duke stock plummeted.

Lynn Sarko, Keller Rohrback LLP attorney, said “It sends a loud and clear message to all trustees and fiduciaries of retirement plans that they need to take their job seriously.”

Keller Rohrback filed one of two 401 (k) lawsuits on behalf of Duke Energy employees in 2002. Both lawsuits were dismissed in June by Chief Judge Graham C. Mullen of the U.S. District Court for the Western District of North Carolina.

Link to a previous Duke Energy 401(k) lawsuit article:

Duke Energy 401(k) Class Action

Cheney Loses Energy Appeal

Employee Advocate – - September 14, 2003

Reuters reported that VP Cheney lost an appeal to keep his secret energy meetings hidden from the public. He and G. W. Bush had a pretty good racket going. They did anything that they wanted to do and kept the facts hidden.

Cheney can still appeal to the Supreme Court. The battle is not won yet; these are the people that selected G. W. Bush to occupy the White House!

Environmental groups were not allowed to attend the secret meetings. But Ken Lay, from Enron, and Harvey Padewer, from Duke Energy, were there.

More on the secret energy meetings:

Cheney Continues to Hide Energy Data

A Spammer Spanking

Employee Advocate – - August 28, 2003

The New York Attorney General's Office settled a lawsuit against E.B.A. Wholesale, alias, according to the Associated Press. Among other things, the guilty company will pay a penalty of $10,000. will also have to pay an undisclosed amount of money.

In a just world, a reasonable amount of prison time would go along with the penalty, say 20 years, with no parole. is going after other e-mail address forgers and senders of spam. Lawsuits have already been filed against Rockin Time Holdings, of Miami Beach, Fla.; Royal Responder, of Fort Collins, Colo.; Jay Unzicker, of Arizona; Cyberpower Pty; 1505820 Ontario Inc., of Ontario; Edward Davidson, of Florida; Matrix Consulting Group, of Wisconsin; Daniel Byron Black, of California, to mention a few.

Microsoft started spanking spammers in June.

Whistleblower Collects $930,000

Employee Advocate – - August 26, 2003

A whistleblower will collect $930,000 from The University of California, according to The Recorder.

Investigators Glenn Walp and Steve Doran revealed fraud and mismanagement at Los Alamos National Laboratory.

The University of California decided to settle the matter the old fashion way – both men were fired.

How did this work out for the university?

A congressional inquire was launched to investigate the mismanagement. The Department of Energy and other agencies also investigated the matter. The men were rehired. The university’s 60-year-old contract to run the lab was put out to bid. Other national laboratories run by the university are now under suspision.

The other whistleblower had previously obtained a settlement for an undisclosed amount of money.

Test Everything in Court

Employee Advocate – - August 21, 2003

Countless employees have walked away from potentially winning cases, because the company claimed a legal advantage. Don’t believe what the self-serving corporate mouth-pieces say. Believe only what the court has to say. Corporations are not above lying to employees. If employees can be bluffed out, it’s a lot cheaper than litigation, and the company automatically wins. Sometimes corporations think that they have a legal advantage, until the court shoots the advantage full of holes. The employee that believes everything that a corporation tries to sell him, is in a hopeless situation.

When legal agreements are drawn up, lawyers often tend to get carried away. They have a blank sheet in front of them and go wild concocting a one-sided agreement. The “agreement” effectively states “The party who wrote the agreement gets everything. The party that did not write the agreement gets nothing.”

But sometimes attorneys get too cute in trying to ensure that their client has every advantage. The Legal Intelligencer reported that many arbitration agreements are illegal, because they are loaded with illegal terms!

In Alexander v. Anthony Crane International, the 3rd U.S. Circuit Court of Appeals ruled that such offending agreements must be struck down. Employees would then be free to pursue justice in court.

In addition to other complaints, employees alleged that they were told that the company would not recognize seniority and that no "old men" would be filling crane operator positions.

Senior U.S. Circuit Judge Robert E. Cowen wrote “We cannot give effect to an agreement to arbitrate afflicted by so much fundamental and pervasive unfairness… The cumulative effect of so much illegality prevents us from enforcing the arbitration agreement. Because the sickness has infected the trunk, we must cut down the entire tree

Judge Cowen found that the employees “had no opportunity to negotiate or otherwise reject its specific terms.”

That’s the way it always goes; employees seldom even see the documents that supposedly govern them. If employees are provided with documentation, it is usually a summary, with zero legal binding. They are said to be bound by documents that they have never seen. And, the chances of employees having any input in to these one-sided agreements are near zero.

Judge Cowen found that "the 30-day limitations period ... is clearly unreasonable and unduly favorable to Anthony Crane… These restrictions are one-sided in the extreme and unreasonably favorable to Anthony Crane…They prevent an employee from recovering not only his or her attorney's fees but also such potentially significant relief as punitive damages. An employee therefore is not entitled to complete compensation for any harm done and the company is able to evade full responsibility for its actions.”

Do you think any corporation will ever volunteer this information? Put your trust in a corporation at your own peril.

Gulf War Veterans are Suing Corporations

Employee Advocate – - August 21, 2003

Persian Gulf War veterans are suing 11 chemical companies and 33 banks for allegedly helping Iraq obtain chemical weapons, according to The Hartford Courant.

The suit alleges that defendants “built Saddam Hussein's nerve gas and mustard gas factories, supplied him with chemical weapons production equipment, and sold him the bulk chemical precursors used to make his chemical weapons.”

The Defense Department is singing, dancing, and trying to downplay the issue.

The lawsuit claims the defendants “made large profits by helping Saddam Hussein make the nerve gas and mustard gas.”

The CIA has admitted to knowing that bunkers contained chemical warfare agents. The troops that destroyed these bunkers were never told.

Thousands of veterans were found to have “a cluster of symptoms consistent with neurological impairment,” according to a government study.

Supreme Court Agent Orange Win

Thin-Skinned CEO Ordered to Pay Up

Employee Advocate – - August 15, 2003

The Press & Sun-Bulletin reported than a fired Endicott Interconnect Technologies (EIT) employee was ordered to be reinstated. A National Labor Relations Board judge ordered that engineer Rick White be rehired, given backpay, interest, and benefits.

Mr. White had been terminated for making disparaging comments about EIT on an Internet forum. The judge ruled that the comments were protected as part of his union organizing rights. Mr. White was discharged in December of 2002.

EIT was ordered to halt “discharging, warning, threatening or otherwise discriminating against its employees for engaging” in union activities.

Lee Conrad, former IBM-Endicott employee and now union organizer, said “We always believed that Rick was fired for organizing activities at EIT and this ruling just reinforces that belief.”

In a 14-page opinion, Administrative Law Judge Joel P. Biblowitz wrote that CEO William R. Maines “cannot be too thin-skinned.” The judge said that Mr. White had a right to defend the union in a public forum, and ruled that his comments were protected from retaliation.

Clean Air Act Lawsuits

Employee Advocate – - August 8, 2003

A federal judge ruled Thursday that Ohio Edison violated the Clean Air Act, according to the New York Times. A precedent may have been set that will affect the other big utilities waiting to stand trial. Defendants include: American Electric Power, the Southern Company; Cinergy, Duke Energy, and Illinois Power. These are companies that have avoided updating pollution controls at older coal-burning plants.

Judge Edmund A. Sargus Jr. of Federal District Court in Columbus made the ruling.

Eliot Spitzer, New York State attorney general, said, "The impact goes far beyond Ohio Edison, because the other utilities that have raised the same legal objections will realize that their legal arguments will not prevail."

Richard Blumenthal, Connecticut attorney general, said “This decision shows very powerfully that other states and the administration cannot simply tell the Northeast to drop dead. They will be held accountable for pollution they cause in violation of the Clean Air Act.”

When Pension Lies Crumble

Employee Advocate – - August 7, 2003

Ellen E. Schultz, Wall Street Journal reporter, covered the pension lawsuit wins by employees over IBM and Xerox. Ms. Schultz has been exposing the corruptness of cash balance plans for years; no one else does it better.

She said that both rulings “conclude that cash-balance plans discriminate against older workers, cut older workers' benefits and serve to lower the costs and bolster the profits of employers that use them.”

After a conversion, pension plans can become cash cows, sending pension “income” to the bottom line. That is because pension liabilities are reduced. For employees forced into these plans, it means less retirement money to live on for the rest of their lives.

The attorneys of both corporations tried all of their smoke screens, but the judges saw through them!

Watson Wyatt Worldwide is running scared. They are issuing warnings, but their voice is shaky and their legs are trembling. If cash balance plans are universally recognized for the rip-offs that they are, that will be the end of Watson Wyatt’s business of selling the plans. Not only that, but companies will very likely sue Watson Wyatt for getting them into all the pension problems. And, anti-racketeering laws have not been exercised against the plan sellers yet.

Enron road high for a while. When their scam was exposed, they crumbled to the ground. Watson Wyatt has been riding high for some time. Did you just hear a crack?

Ms. Schultz said “Employers have reason to be uneasy.”

Ms. Schultz is one of the few people who thoroughly understands all the aspects of cash balance plans. She also understands how dangerous they are to employees.

Xerox makes the third company to lose an appeal involving lump-sum payouts form cash balance plans. There seems to be a pattern here! Georgia-Pacific and Fleet Boston Financial also lost lump-sum appeals.

The corporations and their toadies are sending out lobbyist, like the Wicked Witch of the North sending out flying monkeys! They are begging the Treasury to save their ill gotten gains. It may literally take an act of Congress to settle the uproar.

The lie that cash balance plans do not save companies money was crushed by Judge C. Patrick Murphy. He said “Astonishingly, plan income was over $1 billion in 2001, and this accounted for 13% of IBM's overall net income.”

Cash balance plans are based on lies. When the lies are exposed, where does that leave the plans? Where does that leave the corporations? Where does that leave the plan sellers?

Judge Murphy said “IBM was aware of the age-discrimination issues that would come with the new (cash-balance formula) ... IBM, like many other corporate plan sponsors, proceeded with open eyes and was fully informed of the consequences of the litigation that was sure to come.”

If this was the case, why did the corporations take such a chance? For the billions of dollars in the employees’ pension funds, they were willing to take the chance! For a time they thought that they had pulled it off. Now they are sweating.

Ms. Schultz contends “Employers have always known that cash-balance plans violate age-discrimination rules in pension law…”

To make matters even worse, pension funds were grossly overfunded when the cash balance takeaways started! The corporations’ only excuse is GREED.

The Pension Game

Xerox Employees Win Pension Lawsuit!

Employee Advocate – - August 2, 2003

Xerox employees won a $300 million pension lawsuit appeal, according to The Wall Street Journal. Employees initially won the case in the U.S. District Court for the Southern District of Illinois, but Xerox appealed. Legal counsel assured Xerox that the judgment would be overturned. But on Friday, August 1, the 7th Circuit Court of Appeals also ruled in favor of the employees! A corporate attorney is a lot like a corporate spokesperson. Just because they say something, does not make it so! In fact, it often means the exact opposite.

The ruling came only one day after a federal judge blew IBM’s cash balance pension plan out of the water.

The two pension cases were not exactly alike. The Xerox case involved underpaying retirees by using bogus calculations. The IBM pension case involved age discrimination.

Janet Krueger, IBM pension fighter, offered an interesting piece of information: “This lawsuit (Xerox) was appeal to the same judge and federal appeals court that the IBM lawsuit will be escalated to.”

Xerox Pension Litigation

IBM Employees Win Pension Lawsuit!

Employee Advocate - - August 1, 2003

IBM employees beat Big Blue in a pension lawsuit on July 31, 2003, according to the Associated Press. IBM illegally discriminated against older workers twice by altering promised pension benefits. IBM converted the pension plan into a dubious cash balance plan, just as Duke Energy had done two years earlier.

In the conversion, IBM unfairly penalized older workers. That was the ruling of Judge G. Patrick Murphy of U.S. District Court in East St. Louis, Illinois.

In one respect, the IBM conversion was better than the one that Duke Energy forced on its employees. At IBM, when one leaves the company, the cash balance amount can be withdrawn. No so at Duke Energy. If an employees leaves Duke Energy, the company keeps the cash balance amount until the employee reaches age 55! This is always touted as the great benefit of cash balance plans. But if you work for Duke Energy, you do not even get that!

The amount of damages to be paid to employees by IBM will be determined in later hearings.

The companies that have taken benefits from employees through cash balance plans have offered some thin excuses over the years. None of them ever passed the smell test.

Lead plaintiff Kathi Cooper said “It's awesome -- I knew we had a case…When IBM converted to a cash balance plan, it hurt almost every single employee over the age of 40, 45, because it reduced our accrued benefits. The law says you cannot reduce benefit accruals on account of age...That formula was part of the greed from the 1990s -- it's all about greed."

IBM spokesman Bill Hughes howled like a stuck hog, but no one is listening to his corporate prattle.

Norman Stein, University of Alabama law professor, said “IBM's plan became ... the poster child for cash balance abuse. This was the very kind of employer that you wouldn't expect this kind of action from and I think the employees regarded this literally as an act of betrayal.”

And, just as IBM betrayed its employees, so have a lot of other corporations, cursed with greedy CEO’s.

The AP article stated: “Stein said Thursday's ruling appears to reject arguments IBM and numerous other companies have made in defending their shift to cash balance plans. In doing so, it could force lawmakers to tackle an issue they have been so far reluctant to touch, he and others said.”

Karen Ferguson, director of the Pension Rights Center, said “The judge, in very plain English says the laws says that these cash balance plans...discriminate against older employees and are unlawful. His reasoning is so crystal clear, it's so consistent with the language of the law that it would apply to every cash balance conversion.”

Victorious Kathi Cooper said “I love that company. It's like having an errant teenager on drugs, and you'll do anything to make it right. This is bad behavior. It's got to be stopped.”

Little King George

Employee Advocate – - July 29, 2003

On Friday 25, July 2003, published “Who Made George W. Bush Our King?” The answer is of course: “The United States Supreme Court.”

The Supreme Court actually only put G. W. Bush in the White House. The Fourth Circuit Court of Appeals gave G. W. Bush “a fearsome power that can be found nowhere in the Constitution-the sole authority to imprison an American citizen indefinitely without charges or access to a lawyer.”

The case is now before the Supreme Court. So, maybe they will crown Bush King – Little King George.

Energy CEO Gets Nailed

Employee Advocate – - July 16, 2003

Westar Energy Inc. CEO David Wittig will have a hard time claiming “completely exonerated,” according to the Associated Press. He and his banker, Clinton Odell Weidner II, were convicted of conspiracy, bank fraud, and money laundering. All CEO’s want to maximize profits, but some just don’t know where to stop.

Weidner also had to forfeit some dubiously acquired real estate. Both wheeler-dealers are looking at up to 135 years in prison.

The judge gave the jury 53 instructions. Of course, they could have ignored them all if they had wished. In the jury room the jury rules, not the judge. The judge can influence the jury, only if the members let him. If the jury does not believe a law is just, they can nullify it and return a verdict as they see fit. Their decision will set no precedent, but it will stand for that one case. Judges never seem to get around to covering this point.

The names Wittig and Weidner even sound suspicious. If you don’t think so, repeat them about 50 times: Wittig and Weidner, Wittig and Weidner, Wittig and Weidner… Would you buy a used car from an outfit named Wittig and Weidner?

Wittig and Weidner will get their just deserts on October 20. Former energy CEO Wittig turned white as the verdicts were read.

Wittig has other problems too. Westar is trying to reclaim millions of dollars in compensation from him and another former executive. But if he gets 135 years in the big house, he will not need too much money.

Lobbying or Bribing?

Cannot Force Dead People to Work

Employee Advocate – - July 15, 2003

When the typical corporate executive wants to enrich himself even more, he usually goes for the “low hanging fruit” - that’s the employees. The workers can usually be downsized, right-sized, or simply shredded with impunity, but not always. Barring that, the corporations can find some pretext for reducing promised pensions and/or health-care benefits.

Polaroid has set a new standard in padding the bottom line at the expense of employees. According to a Wall Street Journal report, Polaroid has begun a policy of firing its disabled workers. Not only that, but Polaroid also terminates their health-care coverage! Evidently the Polaroid executives feel that when you get a disabled worker down – you should stomp him!

These executives will no doubt be awarded bonuses for “saving on health-care costs.” Last July, Polaroid Corp. whacked 180 disabled employees. These workers lost their jobs and they lost their health, life, and dental insurance!

Executives can justify anything. You see, they were preparing to sell assets to Bank One Corp. The terminations were undoubtedly viewed as part of the window dressing.

John Magenheimer was once the head of a Polaroid research laboratory. He was out of work for cancer surgery. A tumor was pressing against his heart. A rib had to be removed to reach the tumor. As he lay “in a fog” from radiation treatment and chemotherapy, his wife showed him the termination letter.

The stunned Mr. Magenheimer said “I couldn't believe this was happening. How could Polaroid do this to me? For more than 20 years I gave them everything I had.”

If one gives everything he has to jackals, the jackals will only want more.

Nelson Tauriac was a 21 year Polaroid veteran. A kidney disease caused his feet to swell to three times their normal size. When he was terminated, he could not afford to keep his two-bedroom apartment and pay insurance premiums also. He had to move into a “modest cottage.” He died On Oct. 15, 2002, at age 61. His wife said “it was the stress…no money, no house, no peace.”

Mrs. Tauriac could not have afforded the funeral, had her son not paid for it. She is also a Polaroid retiree. At 59, she has to move from relative to relative and skip taking medication to save money. She will now have to enter the job market.

27% of 723 companies surveyed by Mercer Human Resource Consulting stated that they dismiss employees immediately when they go on long-term disability. 24% dismiss the employees at a fixed time later.

This note was added to the article: “Dow Jones & Co., which publishes The Wall Street Journal, terminates employees six months afterward.”

Mercer knows a thing or two about how to squeeze employees. William M. Mercer designed the cash balance pension plan that was forced on Duke Energy employees. Mercer was also involved in the IBM cash balance plan fiasco. There may be a ruling on that lawsuit this month.

The fired Polaroid employees are still entitled to some compensation from Social Security and insurance policies. The problem is these payments can take years to get started. And, the loss of health and life insurance was a financially devastating blow to the employees. These events transpires when the workers were the least able to cope with it. It was taking every ounce of strength for some just to cling to life.

A discrimination lawsuit was file on behalf of the disabled employees last week. Denice Lessard won such a lawsuit against MMI. A U.S. Circuit Court of Appeals panel wrote that disabled workers were being punished “for exercising their rights under an employee benefit plan.” MMI settled with Ms. Lessard. Her attorney, Laurence F. Padway, said that her benefits have been restored.

Employees on long-term disability have increased 62% since 1992. Corporations have effectively been forcing employees to work longer by such means as cash balance pension conversions. Workers may have to work an extra ten years just to receive the benefits that they were repeatedly promised to get at age 55.

The longer older workers are forced to work, the more that will be on disability. More employees will be dying on the job too. What a despicable way to go! The only solace is that this is the one relief from work that the executives cannot take away. The executives will never be able to exploit some fine print and make employees work a thousand years to draw their promised pension. In the workforce, it is the only guarantee that employees can count on: Executives will never be able to force dead people to continue working.

The Cows v. the Power Company

Employee Advocate – - July 12, 2003

The National Law Journal reported that a rare "nontraditional stray voltage" ruling favored dairy cows over a power company. The Wisconsin Supreme Court was the second state high court to uphold a jury award for such a claim. The Hoffmann v. Wisconsin Electric Power Co., 2003 Wis. 64, award was for $1.2 million.

The multiple grounding of any electrical system is said to cause nontraditional stray voltage or earth current. These lawsuits have been filed in several other states.

The Iowa Supreme Court upheld a $700,000 stray-voltage award in 2002, Martins v. Interstate Power Co., 652 N.W.2d 657.

Allan and Beverly Hoffmann charged that an underground electrical distribution cable negatively affected their dairy herd. The cows behaved erratically. They were lame and listless and kicked at the milkers. The calf-mortality rate was also high.

A veterinarian suggested the cause of the problems might be electrical. Then the power company found a bad splice in the underground cable.

The jury found that the utility's deteriorated electrical cable introduced ground current that damaged the herd.

The Hoffmanns still lost their land; it was sold to pay debt.

Lynn Laufenberg, of Milwaukee's Laufenberg & Hoefle, said that power companies “try to make it as expensive as possible for plaintiffs to succeed. The last thing they want to do is acknowledge that there is nontraditional stray voltage. It would require them to rewire rural Wisconsin so that the earth is not used as a pathway for return current.”

If You Don’t Ask, Bush Won’t Tell

Employee Advocate – - July 9, 2003

The Bush administration is still trying to thwart the publics’ right to know what transpired at the infamous energy meetings. Dick Cheney want to keep the energy industry’s influence over the task force a secret.

Tuesday, a federal appeals court rejected a bid to stop a lawsuit to obtain answers, according to The Associated Press. The court ruled that some information about the task force must be turned over.

Environmental groups were prohibited from attending the meetings. But energy executives, such a Harvey Padewer, flocked to the meetings.

The Bush energy plan turned out to be a windfall for energy corporations.

This is not the first time:

Attempt to Block Lawsuit Against Cheney

Harvey Padewer at Secret Energy Meetings

Catch 22,222,222

Employee Advocate – - July 8, 2003

The Legal Intelligencer reported that a former Rite Aid Corp. executive lost a court battle involving a promised layoff and severance package. In Miller v. Rite Aid Corp., the company is accused of reneging on a promise to layoff the plaintiff and provide him with a severance package.

The court ruled that since Anthony Miller resigned his job, he was not an ERISA "participant" and had no standing to bring an ERISA claim.

Protection for Online Publishers

Employee Advocate – - July 3, 2003

Wired News reported that website operators, Web loggers, and e-mail list editors can't be held responsible for libel for information they republish. The Ninth Circuit Court of Appeals extended First Amendment protections to do-it-yourself online publishers.

Cindy Cohn is the legal director of the Electronic Frontier Foundation. She said “One-way news publications have editors and fact-checkers, and they're not just selling information -- they're selling reliability. But on blogs or e-mail lists, people aren't necessarily selling anything, they're just engaging in speech. That freedom of speech wouldn't exist if you were held liable for every piece of information you cut, paste and forward.”

The 1996 Communications Decency Act states: “... no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Three commercial online service providers have been granted immunity since then. The cases were: Zeran v. AOL, Gentry v. eBay, and Schneider v. Amazon.

The recent ruling unquestionably extends the immunity to noncommercial publishers. Protection is granted to those who select, delete, or approve messages and articles for online publication.

Ms. Cohn said “Here, the court basically said that when it comes to Internet publication, you can edit, pick and choose, and still be protected.”

The case leads back to a 1999 legal dispute in North Carolina.

The plaintiff who lost that ruling appealed to the district attorney for sympathy. His advice was “Get a dog, get a gun, get a security system or better yet get out of town.”

First Amendment Right to Voice Complaints

Ex Employee is Free to E-mail

Employee Advocate – - July 2, 2003

It happens time and time again. A corporation will try to crush an employee over some minor matter and it will haunt them for years to come. The few pennies gained by the executives become meaningless. When the issue takes on life of its own – there is no quite way out for the corporation.

Such was the case when Intel fired an employee, according to Reuters. Did the employee embezzle money? Did he shoot up the place? Was he selling drugs in the parking lot? No, no, no. His crime was taking disability leave. So, right from the beginning, the episode has a bit of a smell to it.

The “wonderful” thing about humans is that you can never be 100% sure how they will react to any situation. When a worker feels that he has been treated unjustly, the corporation hopes that he will just slink away quietly. Most do, but not all.

This employee felt that he was unjustly fired and began an e-mail campaign to Intel workers. He sent six e-mails to perhaps 35,000 Intel employees over several years. In them he complained about the employment practices at Intel.

Well, what was Intel going to do? They were a giant corporation, with a chip on their shoulder (pun intended). They had already tired to crush the employee for being hurt or sick by firing him. How could they finish the job? Intel decided to bring a lawsuit against him for property trespass. How did he trespass? By sending e-mail. Does that sound a little thin to you?

It sounded thin to the California Supreme Court also. The court ruled that the employee could not be sued under state law for property trespass for just sending e-mail. The ruling reversed a lower court order that restricted Ken Hamidi from sending such e-mail.

The story made the news and law journals nationwide. There stands Intel, with egg on the face, looking dumb and fully exposed. What will they do for an encore?

The court found the e-mail to be harmless, even though Intel found it to be Objectionable. No law stated that Intel had to like it.

Undaunted, Mr. Hamidi vows to continue sending the e-mail to Intel workers. He may even start sending it weekly.

Mr. Hamidi said “For five years I have been muzzled. I'm amazingly excited. I cannot describe the feeling.”

Rare Employee Pension Win

Employee Advocate – - June 30, 2003

The courts have been known to rule in favor of employees, even in difficult to prove pension cases, according to The National Law Journal. A federal judge has approved a $36 million settlement that favors the employees over McDonnell Douglas Corp. The company will be required to compensate about 1,100 former workers for lost pension and benefits. The case is Millsap v. McDonnell Douglas Corp., No. 94-CV-633-H.

The charge was that the company violated the Employee Retirement Income Security Act (ERISA) by closing a plant to deprive workers of their pensions. It was alleged that the closing would shed employees who were on the verge of vesting or whose benefit cost were high.

It is only the third time that such a case has been won by employees. 50 of the plaintiffs have died since the litigation began in 1994.

The settlement is contingent upon the 10th U.S. Circuit Court of Appeals agreeing to consider whether courts can award "backpay" as a remedy for ERISA violations.

Fraud Claims Against Deloitte Touche

Employee Advocate – - June 25, 2003

The New York Law Journal reports that Deloitte Touche Bermuda will have to stand trial on charges “that it aided and abetted the massive fraud allegedly perpetrated on investors by Michael Berger's Manhattan Investment Fund.”

The firm’s motion was rejected on Monday by Federal Judge Denise Cote of the Southern District of New York. The alleged aiding and abetting fraud amount totals $400 million for fiscal years 1996 and 1997.

The class action suit is: Cromer Finance Ltd. v. Berger, 00 Civ. 2284. Allegations include: securities fraud, aiding and abetting common law fraud and breach of fiduciary duty, common law fraud, negligence and professional malpractice.

Michael Berger plead guilty in 2000 and admitted to lying to investors. He is now a fugitive from justice.

Previous article about Duke Energy’s auditor, Deloitte & Touche:

Deloitte & Touche's Challenges Rejected

Hear a Corporate Attorney as He Squirms

Employee Advocate – - June 21, 2003

In the case, 02-3674 : Berger, David v. Xerox Retirement, the corporate attorney is arguing that the Xerox cash balance pension plan is not illegal. The judge does not seem to be buying his song and dance.

Corporations have been telling employees all manner of ridiculous excuses for taking their pension money through cash balance plan conversions. They knew that they could tell employees anything with impunity. But now, some are trying to prove that their plans are not illegal before a judge. More cases are waiting in the wings.

Listen as a corporate attorney squirms before a judge in the Seventh Circuit Court of Appeals:

Oral Arguments - Seventh Circuit Court of Appeals

CEO Must Face ERISA Charges

Employee Advocate - - June 20, 2003

The New York Law Journal reports that WorldCom employees suing because of retirement plan losses will get their day in court. WorldCom CEO Bernie Ebbers is charged with violating his fiduciary duty to employees.

U.S. District Judge Denise Cote refused to dismiss the claims. The charges include withholding negative financial information and making misrepresentations about company stock. The CEO is charges with violations of the Employment Retirement Income Security Act of 1974.

The judge ruled "When a corporate insider puts on his ERISA hat, he is not assumed to have forgotten adverse information he may have acquired while acting in his corporate capacity." (WorldCom Inc. ERISA Litigation, Master File 02 Civ. 4816.)

Several other WorldCom executives have already been charged with crimes after admitting to the “largest accounting fraud in U.S. history.”

An employee ERISA lawsuit against Duke Energy is working its way through the federal court system.

Hello, Supreme Court

Employee Advocate – - June 19, 2003

Dow Jones provided an update on the IBM Pension Lawsuit; a ruling may come as soon as July.

Lawyer Doug Sprong said that if Kathi Cooper, IBM employee, wins the class action suit, she will draw a larger annuity at retirement. And, so will 140,000 other employees!

At the heart of the lawsuit is the 1999 cash balance pension plan conversion. Employees do not like having promised money taken from them. They do not like having their benefits frozen for years.

Under the Bush administration, the Treasury Department tried to introduce some cash balance loopholes for corporations. It was a major flop. Employees and even corporations protested the hackneyed rules.

Ms. Cooper said “I hate to see legislative fixes because, after all, this is America. If something's illegal, it should stay illegal. We shouldn't grant amnesty so that corporations can get off the hook and keep our money.”

Her statement sums up the cash balance situation in America.

But do not expect a final resolution anytime soon. There are too many millions of dollars at stake. The millions are the pension money promised to workers for 30 or 40 years of labor. Andy Lang, retired actuary, said that the amount of money involved in pension scandals dwarfs the savings and loan scandal of a few years back!

Hello, Supreme Court.

Energy Racketeering Charges

Employee Advocate – - June 15, 2003

Charges have been flying from the California power crisis of 2000/2001. With all the smoke billowing, it seemed that there must be fire somewhere. The Seattle Times reports that utilities are being sued for racketeering.

On May 29, the Port of Seattle charged Portland General Electric and “a slew” of other big power companies with manipulating prices by using false information. The lawsuit alleges violations of Racketeer Influenced and Corrupt Organization Act and the Sherman Act by transmitting false data by wire to escalate prices and profit.

18 companies are being sued for direct compensation and triple damages. More lawsuits are expected. Hundreds of millions of dollars could be involved.

Philip Chabot, the Port’s lawyer, said “It was apparent to many early on that this big a train wreck didn't happen by accident. Getting evidence has been a slow and tedious project. Gradually and eventually, evidence emerged that allowed us to not only put the dots on the paper, but begin to connect the dots.”

Supreme Court Job-Bias Plaintiff Victory

Employee Advocate – - June 11, 2003

The Supreme Court made it easier for workers to win employment discrimination suits, according to the New York Times. The unanimous decision covers cases where race, sex, religion or national origin is involved among other factors.

The case was Desert Palace v. Costa, No. 02-679. Catharina Costa originally won a $364,000 jury award.

Supreme Court Agent Orange Win

Employee Advocate - - June 11, 2003

Vietnam veterans won an Agent Orange Supreme Court victory on Monday, according to the Legal Times.

Veterans won the right to sue because of illnesses that began after a class action settlement expired in 1994. The Court affirmed a ruling of the 2nd U.S. Circuit Court of Appeals that claims may proceed. The case was Dow Chemical v. Stephenson, No. 02-271.

When the smoke clears, veterans are too often forgotten.

Veterans Abused Until the End

Deloitte & Touche's Challenges Rejected

Employee Advocate – - June 1, 2003

The Legal Intelligencer reported that a case against Deloitte & Touche, filed by the Pennsylvania state insurance commissioner, will go froward. Commissioner M. Diane Koken made the allegation that Deloitte helped lead to the liquidation of the company by assisting in overstating its assets by more than $1 billion.

The preliminary objections made by Deloitte & Touche were thrown out by Commonwealth Court President Judge James Gardner Colins. The Koken v. Steinberg complaint, alleging negligence, malpractice and breach of contract and other counts, will proceed.

Previous article mentioning Duke Energy’s auditor, Deloitte & Touche:

Maneuvers Invite Criminal Prosecution

NY Companies Face More Liability

Employee Advocate – – May 28, 2003

A 2nd Circuit Decision will benefit employees in New York, reports the New York Law Journal. Companies will find it more difficult to evade discrimination charges because the person in charge was not technically a supervisor. The case is Mack v. Otis Elevator Co., 326 F.3d 116.

Jay W. Waks, labor and employment practice chairman at Kaye Scholer, said "You need to let people in a leadership position know that just because they don't have hire and fire authority, they can still incur liability."

Attempt to Block Lawsuit Against Cheney

Associated Press – May 10, 2003

(4/17/03) - WASHINGTON (AP) - The Bush administration ran into strong opposition in federal appeals court Thursday as government lawyers tried to stop a lawsuit delving into Vice President Dick Cheney's contacts with energy industry executives and lobbyists.

Appeals judges Harry Edwards and David Tatel suggested the White House had no legal basis for asking them to block a lower court judge from letting the case proceed.

``You have no authority'' to ask the appeals court to intervene, Edwards told a government attorney during arguments. He added later, ``You have no case.''

The appeals judges gave no indication when they would issue a ruling. The Bush administration has taken the unusual step of coming to the appeals court in the midst of the case.

Federal agencies have disclosed 39,000 pages of internal documents related to the work of Cheney's energy task force, but the Cheney task force itself has produced nothing, claiming the need for confidential advice to the president from his top advisers.

U.S. District Judge Emmet Sullivan has ruled that the Sierra Club and Judicial Watch may be entitled to a limited amount of information about the meetings that Cheney and his aides had with the energy industry in formulating the White House's energy plan.

The plan, adopted four months after President Bush took office, favored opening up public lands to oil and gas drilling and a wide range of other steps backed by industry.

The task force has acknowledged that one of the executives it met with was former Enron Corp. chairman Kenneth Lay.

Edwards, a Carter-era appointee, and Tatel, an appointee of President Clinton, said the administration has failed to show that it is suffering legal harm at the hands of the lower court.

The third member of the panel, Appeals Judge A. Raymond Randolph, expressed doubt that the Cheney task force is required under the law to disclose information about its inner workings. However, Randolph, an appointee of Bush's father, questioned whether the administration should be seeking appeals court intervention.

Tatel and Edwards pressed the government on why it hadn't sought to narrow the scope of information requests rather than simply trying to block them altogether.

The government's position is that the current record in the case is sufficient.

The Bush administration says it has demonstrated that the makeup of the Cheney task force was limited to government officials. But the groups that are suing allege that participants from industry effectively became members of Cheney's task force in assembling the White House's energy policy.

Legal - Page 19