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Legal     1 - Duke Energy Employee Advocate

Legal - Page 21

"Following the path of least resistance is what makes rivers and men crooked" - Unknown

"Court May Block Duke Project" Has Moved to a New Location

Judge Buying?

Employee Advocate – – February 6, 2004

The Los Angeles Times revealed more about the duck hunting trip that Supreme Court Justice Antonin Scalia and V. P. Dick Cheney went on. The trip gets to be an issue because Cheney has appealed a case to the Supreme Court. Only weeks after it was known that the case would end up in the Supreme Court, the hunting trip took place.

Both the judge and V. P. have been protesting too loudly that this was not an attempt to influence the outcome of the case. Ideally, the judge would have removed himself from the case, without any prompting. But amid calls by experts for him to remove himself, the judge is showing no interest in doing so. If the judge has no personal agenda, why is he so adamant in refusing to step aside?

The trip turns out not to be just a chance meeting between the judge and the defendant. Cheney paid for the trip!

On January 5, Dick Cheney and the judge flew to a small landing strip in Air Force Two. A backup jet carried an entourage of staff and security aides. Two military helicopters also hovered as the duck hunting pair and entourage were whisked away in a heavily guarded motorcade to a private hunting camp.

The energy industry has a tremendous interest in this case. To make the story complete, the camp is owned by an oil industry businessman.

Cheney’s legal problems began when he refused to allow anyone other than energy executives to attend his energy tasks force meetings in 2001. Since that time he has been trying to pass legislation that would be a windfall for energy companies. Cheney has refused to provide any information about the secret meetings.

The justice was asked this week whether Cheney paid for the trip, but he refused to answer. So the judge refused to admit that the defendant was buying him gifts before the upcoming case, and has refused to step down from the case.

Then there is the matter of photographs. They were forbidden when Cheney and the judge were together. But when Cheney returned alone two days later, he was happy to pose for photographs.

New York University law professor Stephen Gillers said “In my view, this further ratchets it up. If the vice president is the source of generosity, it means Scalia is accepting a gift of some value from a litigant in a case before him. It is not just a trip with a litigant. It's a trip at the expense of the litigant. This is an easy case for stepping aside.”

When Mr. Gillers found out no ethics rules cover the situation, he said “This has exposed a gap in the ethics rules. This is a federal law that applies to the justices, but in this instance, Scalia is the judge of his own case. I would think the full court has an interest in its institutional reputation and would want to review a decision like this.”

Northwestern University law professor Steven Lubet said “This is certainly a level of hospitality that most litigants are not able to extend to Supreme Court justices. It also reinforces the perception this was an exceptional event, not a run-of-the-mill social event or a White House dinner.”

David Bookbinder, of Sierra Club, said “On the face of it, that makes things worse. The fact that the vice president is his host and, in effect, is paying for his vacation puts it in an even more awkward light for Justice Scalia.”

Cheney Cannot Shake Halliburton

Congressmen Want Scalia Off Energy Case

Employee Advocate – – February 1, 2004

Congressmen Henry Waxman and John Conyers said that Justice Antonin has a conflict of interest regarding the pending Supreme Court energy case, according to the Los Angeles Times. A letter has been sent to Chief Justice William Rehnquist, requesting him to establish a procedure for formal review of possible ethical conflicts by individual justices.

The case involves V. P. Dick Cheney’s refusal to provide information about energy task force meetings, which have been shrouded in secrecy since the beginning of the Bush administration. Lower courts have ruled that Cheney must come clean. Cheney wants the American public in the dark and is appealing the case as far as he can.

Apparently energy executives were allowed to write their own ticked during the meetings. The proposed energy bill that followed was loaded with special favors for energy groups. The bill is loaded with so much pork for the energy industry that Congress has refused to pass the bill. So the bill has languished since 2001, while Cheney has been fighting off lawsuits by the Sierra Club and Judicial Watch.

Justice Antonin Scalia has become a point of contention because he is so chummy with Cheney. The pair spent days together on a recent duck-hunting trip. The pair has also been seen dining together outside of Washington, D.C.

Justice Scalia said that he did not see a need to remove himself. They never do. Justice Scalia said “I do not think my impartiality could reasonably be questioned.” But his impartiality is very much in question.

There have already been too many gaffes with the energy meetings. The last thing that is needed is a farce trial to whitewash everything and allow Cheney to keep hiding information from the public.

Halliburton Still Haunts Cheney

Halliburton Still Haunts Cheney

Employee Advocate – – January 24, 2004

Before the Supreme Court bypassed the voters and placed G. W. Bush and Dick Cheney in office, Cheney was the CEO of Halliburton Co. The corporation stuffed Cheney’s pockets with millions of dollars when he left for Washington. When Iraq fell to US forces, there was no bidding process for the reconstruction work. The contract was arbitrarily handed to Halliburton.

Yesterday, the Wall Street Journal reported a new Halliburton development – accepting kickbacks in Iraq. Halliburton admitted that two employees knocked down $6.3 million in bribes for awarding work.

Halliburton recently boasted that its work in Iraq was fairly priced and free from shady practices. Last month, the Pentagon charged a Halliburton subsidiary with overcharging to the tune of $61 million.

The Associated Press reported that a Paris judge warned that Dick Cheney may be charged in a separate Halliburton bribery case. Halliburton has been accused of paying $180 million in bribes to build an Nigerian gas plant. Cheney has spokesmen, but they are not speaking.

This is not the only charge involving bribery, Halliburton, and Nigeria.

Never Ending Energy Saga

The Real State of the Union

Employee Advocate – – January 21, 2004

Earthjustice announced that it is suing the Environmental Protection Agency (EPA) for giving illegal, special access to a group of chemical corporations. The EPA is just one federal agency than no longer protects the citizens. Under the Bush administration, the agencies exists only to protect corporations.

Federal documents revealed that a corporate insider group had regular, secret meetings with the EPA. These meetings were used to press the EPA to weaken endangered species protections from pesticides. It is business as usual for the Bush administration. This is an exact replay of the Cheney Energy Task Force meetings. Energy executives secretly attended these meetings and mapped out what should be in the energy bill.

The good news is that, in three years, Bush had not been able to twist enough arms to get the energy bill passed. The energy bill is loaded with giveaways for the very people who wrote it.

Patti Goldman, of Earthjustice, said “EPA is letting the pesticide industry have inside influence over the fate of endangered species poisoned by toxic pesticides.”

In a press release, Earthjustice stated “Federal law prohibits the government from using and meeting in secret with such insider groups. Congress has established good government standards that prevent secret and one-sided advisory bodies of wealthy special interests. The Federal Advisory Committee Act prohibits the federal government from obtaining advice from committees comprised of only the regulated industry. That act also requires that the meetings of advisory groups be open to the public.”

This administration does not bend over backwards to obey the law. It prefers to change the law, on the fly, to suit corporate agendas.

Mike Senatore, of Defenders of Wildlife, said “EPA has an open door policy to the biggest chemical companies in America while excluding the rest of us. That’s not right. In America all voices are supposed to be heard, not just wealthy interests that make campaign contributions.”

The very same thing happened while drafting the energy bill. Energy executives were invited to give input, but environmental groups were excluded. And even to this day, everything has been kept hidden from the public. Several lawsuits were filed to obtain information on the energy meetings. One lawsuit is now in the Supreme Court.

Aaron Colangelo, of Natural Resources Defense Council, said “For years, EPA has flouted its obligation to protect endangered species from pesticides. Now that the courts are directing EPA to comply with its duties, the pesticide industry and the Bush administration have come up with a new trick for delaying species protections.”

G. W. Bush will never tell you the real state of the union – it is ROTTEN!

Never Ending Energy Saga

Preemptive Legislation?

Employee Advocate – – January 20, 2004

Elizabeth Shogren wrote for the Los Angles Times of the struggle in Appalachia against destructive coal mining. It seems like this battle has been going on forever. A few years ago, the battle made its way into the courts.

The residents of Appalachia were the undisputed underdogs in the legal battle with giant coal mining corporations. The people had a reasonable complaint; the destructive mining practices were destroying the environment. For two decades, mountain tops had been torn off in a search for coal. The soil was dumped in the valleys. Forests were destroyed. A federal study reported that 700 miles of streams had been buried.

Residents charged the mining companies were in violation of the Clean Water Act. When the law is being flagrantly violated, a lawsuit should thwart the lawbreakers. That is unless someone keeps changing the law to favor the violators. Enter the Bush administration. In 2002, it altered the Clean Water Act to specifically legalize the mining practices!

That tactic to oppress the people in favor of corporations sounds vaguely familiar. Oh yes, the Bush administration tried the same thing with cash balance pension conversions. Millions of American workers have lost pension earnings, due to illegal cash balance conversions. To solve the matter, the Bush administration tried to legalize pension age discrimination, through Treasury regulations!

It’s even harder to beat the house when all the games are rigged.

Surface Mining Act charges were brought in another case. You may be noticing a pattern here. This very month, the Bush administration sought to clarify the rules. Suddenly, the practice became legal!

Rather than going to the inconvenience of following the law, it is a heck of a lot easier just to change the law, after the fact. Perhaps this tactic is preemptive legislation. It’s sort of like preemptive defense, where a country is obliterated because it might someday be a problem. Under preemptive legislation, the law is quickly changed any time a corporation is in danger of losing a case.

Speaking of Iraq, that brings up an election question. The US had been holding elections for well over 200 years, yet the last presidential election was total chaos. The Russians even offered to come in to observe the process. How can the Bush administration possibly show Iraq how to hold an election? Will Jeb Bush be sent over to set things up? Will the US Supreme Court have the authority to fix an undesirable outcome?

Russia to Monitor American Elections?

Back to coal mining: Judy Bonds, of Coal River Watch, said “We find legitimate ways to fight this destructive type of mining, we present our case to the courts, and in the meantime the Bush administration goes behind our backs and changes these laws. It shows contempt for the people who live in these communities and don't want their lives destroyed by the coal industry.”

Ms Bonds added “God compels me to keep fighting. When these mountains go, our culture, our heritage and our identity are gone. This is a spiritual issue as well as an environmental issue.”

Attorney Joe Lovett said “We have found two ways that mountaintop removal mining is an illegal practice and instead of owning up to it and figuring out what to do, they have changed the law… The Bush administration is on a tear to destroy our region. There is nothing the coal industry can't get from the Bush administration.”

We now have just-in-time-legislation. Just before U.S. District Judge Charles H. Haden was to rule on the alleged Clean Water Act violation, presto, the regulation was changed. The judge found the new regulation to be illegal. An appeals court reversed that ruling.

New lawsuits will charge violations of the Endangered Species Act. The Bush administration will no doubt have more rule changes - IF - it has not been replaced.

The residents of Appalachia won a settlement that included an environmental impact study. The administration spent $5 million studying the coal mining situation. Heavy environmental costs were cited. But the only solution proposed was a more streamlined method of issuing mining permits!

Carol Warren, plaintiff supporter, said “Faster permitting for those damaging processes is a slap in the face to those who have suffered greatly.”

Freda Williams has registered complaints about mudslides, caused by the mining. She said “It's the only avenue that citizens have to try to make their water and community safer from these coal companies.”

What has the Bush administration done to help the people of Appalachia lately? Last month, it proposed two more regulatory changes to benefit the coal mining industry.

Cheney's Secret Energy Task Force List

Never Ending Energy Saga

Employee Advocate – – January 19, 2004

The way the Cheney Energy Task Force was handled was a good tip off of what the Bush administration had in store for America. The meetings were a tad lopsided; only energy executives were allowed to attend. That was bad enough. But then, everything about the meetings was kept top secret. This incident happened early on in the Bush administration. But even today, the administration is fighting releasing any information.

Lawsuits were filed to obtain information. The matter is working its way to the Supreme Court. Can the details of the meetings really be that incriminating?

But the plot thickens. V. P. Cheney and Supreme Court Justice Antonin Scalia have been getting rather chummy, according to the L. A. Times. They have been duck hunting at a private camp.

The Times quoted pertinent federal law “any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned.”

Cheney has been ordered to turn over meeting documents; he is hoping the Supreme Court will save him. And why not? It saved the election for him!

The plaintiffs contend that the Federal Advisory Committee Act was violated by secretly meeting with lobbyists for the gas, oil, nuclear, and coal industries.

Stephen Gillers, New York University law professor, said “A judge may have a friendship with a lawyer, and that's fine. But if the lawyer has a case before the judge, they don't socialize until it's over. That shows a proper respect for maintaining the public's confidence in the integrity of the process. I think Justice Scalia should have been cognizant of that and avoided contact with the vice president until this was over. And this is not like a dinner with 25 or 30 people. This is a hunting trip where you are together for a few days.”

In other words, one should try to make it look like the system is not crooked, even if it is.

Seeking Secret Energy Meetings Approval

EPA Ignored the Law on Nuclear Dump

Employee Advocate – – January 16, 2004

The U.S. Court of Appeals for the D.C. Circuit held a hearing on the planned Yucca Mountain nuclear waste repository, according to the Legal Times. The judges were not buying all the government was trying to sell them. There were doubts about the soundness of the plan. Environmental safeguards were questioned.

Judge Harry Edwards noted that the law required the Environmental Protection Agency (EPA) to follow the recommendations of the National Academy of Sciences.

A lot of big money has been pushing the nuclear dump and the EPA basically ignored the Academy’s input! The academy recommended that the site be safeguarded for 300,000 years. The EPA tried to skate by with 10,000 years of safeguarding the dump’s deadly contents.

Judge Edwards said “You've turned a statute on its head. It's really astonishing what the agency did, compared with what the statute said… The [National Academy of Sciences] was absolutely clear that 10,000 is incorrect. An agency does not have the power to do whatever it wants, merely because it has rule-making authority. Agencies often argue that, but it's nonsense. If that's your argument, you lose.”

Yucca Mountain Radiation Release Standards

Merck Fraud and Racketeering Suit

Employee Advocate – – January 14, 2004

The Associated Press reported that Merck & Co. was hit by a $35 million racketeering lawsuit by Peabody Energy Corp. employees and retirees. The allegation was made that Medco Health Solutions Inc. illegally tried to sell Merck drugs to Medco customers, in spite of the availability of lower priced drugs.

The lawsuit alleged that Merck employed a scheme to defraud millions of people nationwide.

Merck and Medco were sued in September by the U.S. attorney's office in Philadelphia for pushing higher priced Merck drugs.

U.S. Joining Suit Against Medco

SEC Investigating Pension Consulting Firms

Employee Advocate – – January 13, 2004

Pension consulting firms are finally being investigated by the Securities and Exchange Commission, according to the Associated Press. These groups are the single greatest enemy of working Americans. They slither around looking for ways to reduce employee benefits. When they come up with a half-baked angle, they slither from corporation to corporation peddling their dubious wares.

Most big corporation eagerly buy into whatever the pension consultants are hawking. Many corporations love nothing better that taking back benefits that employees have already earned. The employees' deferred compensation then goes into executive bonuses, with a fat slice going to the consulting firm.

Pension consulting firms are solely responsible for the widespread cash balance pension misery. They sold cash balance plans as a way for executives to tap into the employees’ retirement fund.

Lori A. Richards, SEC director, compliance inspections and examination office, said that a new avenue of examination is being opened. The SEC has requested information from Watson Wyatt Worldwide, Frank Russell Co., Mercer Investment Consulting of New York, Wilshire Associates of Santa Monica, California, and Segal Advisors of New York.

Possible conflicts of interest between pension consultants and money management firms they work with are being investigated.

The “pay-to-play” scam has been alleged for years by pension consulting industry critics. It’s is a form of payola for recommending a certain management firm to a pension fund. By the time everyone gets a cut from the pension fund, the employees are lucky to have any pension left!

Ms Richards said “Allegations of pay-to-play are very serious and really triggered our interest.”

The time is ripe for pension consulting firms to also be investigated for their unsavory practices in promoting cash balance pension plans.

Judge Rules on Pension Calculations

Employee Advocate – – January 4, 2004

A federal bankruptcy judge ruling was another pension win for employees, according to the New York Times. US Airways is required to calculate pilots' pensions according to existing regulations. The airline wanted to use a new method that would have meant less pensions for employees. These clowns never give up!

The ruling could present a problem for bankrupt companies looking for ways to reduce or eliminate pension obligations. Bankruptcy has been a good racket for corporations for a number of years. Some executives recklessly run their companies and pay themselves millions of dollars for doing it. When their poor management catches up with them, no problem; they just declare bankruptcy. The executives get to keep their millions, and almost everyone else gets pennies on the dollar for their losses.

In case you haven’t noticed, there is a full scale attack on pension funds. Some companies will stoop to anything to get the employees’ retirement money.

In a statement, PBGC Executive Director Steven A. Kandarian wrote: “This ruling is a victory for the financial integrity of the federal pension insurance system… This ruling also affirms that PBGC's claim against sponsors who terminate their pension plans is governed by the Employee Retirement Income Security Act, not bankruptcy law.”

Court Halts Bush

Employee Advocate – – January 3, 2004

The Charlotte Observer reported that a federal appeals court has blocked the effort of G. W. Bush to bypass the law to suit his own agenda. Bush tried to change the federal Clean Air Act by tinkering with a compliance rule. Remember that the Bush administration tried to legalize age discrimination in cash balance pension through Treasury regulations. Two federal appeals courts recently challenged Bush’s authority to detain American citizens indefinitely, without due process.

Courts Challenge Authority of Bush

The executive branch has no authority to make or change law. But Bush has never let legalities interfere with doing what he wants to do.

The court blocked the rule change two day before it was to take effect. Power plants would have been able to ignore federal law, with a little help from Bush.

14 states sued because of the proposed rule change.

The Environmental Protection Agency has turned into a sham operation since G. W. Bush has been in the White House. Likewise, the Treasury, Labor Department, and Equal Employment Opportunity Commission have all become shill operations to promote the Bush agenda.

Regulation Begins at Home

'Silence Cannot be Bought'

USA Today – by Beverly Eckert – December 31, 2003

(12/18/03) - I've chosen to go to court rather than accept a payoff from the 9/11 victims compensation fund. Instead, I want to know what went so wrong with our intelligence and security systems that a band of religious fanatics was able to turn four U.S passenger jets into an enemy force, attack our cities and kill 3,000 civilians with terrifying ease. I want to know why two 110-story skyscrapers collapsed in less than two hours and why escape and rescue options were so limited.

I am suing because unlike other investigative avenues, including congressional hearings and the 9/11 commission, my lawsuit requires all testimony be given under oath and fully uses powers to compel evidence.

The victims fund was not created in a spirit of compassion. Rather, it was a tacit acknowledgement by Congress that it tampered with our civil justice system in an unprecedented way. Lawmakers capped the liability of the airlines at the behest of lobbyists who descended on Washington while the Sept. 11 fires still smoldered.

And this liability cap protects not just the airlines, but also World Trade Center builders, safety engineers and other defendants.

The caps on liability have consequences for those who want to sue to shed light on the mistakes of 9/11. It means the playing field is tilted steeply in favor of those who need to be held accountable. With the financial consequences other than insurance proceeds removed, there is no incentive for those whose negligence contributed to the death toll to acknowledge their failings or implement reforms. They can afford to deny culpability and play a waiting game.

By suing, I've forfeited the "$1.8 million average award" for a death claim I could have collected under the fund. Nor do I have any illusions about winning money in my suit. What I do know is I owe it to my husband, whose death I believe could have been avoided, to see that all of those responsible are held accountable. If we don't get answers to what went wrong, there will be a next time. And instead of 3,000 dead, it will be 10,000. What will Congress do then?

So I say to Congress, big business and everyone who conspired to divert attention from government and private-sector failures: My husband's life was priceless, and I will not let his death be meaningless. My silence cannot be bought.

Beverly Eckert, whose husband died at the World Trade Center, is the founder of Voices of September 11th, a victims advocacy group.

Deloitte in the Middle of Another Investigation

Employee Advocate – – December 21, 2003

The Cayman Islands government is going to investigate Parmalat's €500m (£349m) investment in the obscure Epicurum fund, according toFinancial Times ( The attorney-general will be looking into any possible fraud or money laundering. Deloitte is Parmalat's chief auditor. Grant Thornton has also performed some work for the company.

Deloitte has increasingly relied on the work of other auditors for Parmalat subsidiaries. Deloitte commented: “Our audit was carried out in accordance with the Italian audit standards in force at the time.”

Deloitte is also the auditor of food retailer Ahold. Because of this involvement, “Deloitte was dragged into what was Europe's biggest accounting scandal since US business failures such as Enron.”

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

Fraud Claims Against Deloitte Touche

Courts Challenge Authority of Bush

Employee Advocate – – December 20, 2003

G. W. Bush’s authority to make up law on the fly has been challenged by two federal courts, according to the Associated Press and the New York Law Journal. Bush has been treading on thin legal ice since day one. His all-purpose answer to explain all things is “9/11.” Bush may now find that the 9/11 attacks did not really make him Little King George. That title only exists in his mind.

Federal appeals courts in New York and California challenged Bush’s authority to detain American citizens in Guantanamo Bay and deny them access to the legal system. The legality of denying American citizens their rights by designating them “enemy combatants” has been challenged.

The Second U.S. Circuit Court of Appeals ordered the release of Jose Padilla. The court said that Bush does not have the power to seize Americans in non-combat zones, on U. S. soil, and declare them to be enemy combatants.

The Ninth Circuit ruled that detainees imprisoned in Cuba are under U. S. jurisdiction and may file writs of habeas corpus.

The 2nd Circuit Court ruled that Bush does not have the constitutional authority, or approval of Congress, to detain a combatant in this country. This ruling is on the way to the U.S. Supreme Court.

Senator Bill Nelson said that the Bush administration obtained the authority to use military force by misrepresenting the facts to Congress. The court ruled that this authority “is not such an authorization” to designate enemy combatants.

The 9th Circuit had harsh words for the Bush administration: “[I]t is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike.”

Judge Stephen Reinhardt wrote: “Here, we simply cannot accept the government's position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement.

“We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure. In our view, the government's position is inconsistent with fundamental tenets of American jurisprudence and raises most serious concerns under international law.”

How Congress was duped into giving Bush the power to start a war:

Classified Lies

Racketeering Indictment

Employee Advocate – – December 19, 2003

The Associated Press reported that former Illinois Governor George Ryan has been indicted on 22 counts of corruption. The charges span over a decade, and include: racketeering conspiracy, mail fraud, tax fraud, lying to federal agents, taking free vacations, skimming cash out of his own campaign fund, and improprieties involving millions of dollars in state funds.

The 69-year-old Republican and his family were said to have taken vacations, cash, gifts and other favors to steer state business to friends. The accusations cover his time spent as governor and Illinois secretary of state.

U.S. Attorney Patrick Fitzgerald said “Basically the state of Illinois was for sale.”

59 people have already been convicted in this sweep. Mr. Ryan is the 66th person to be charged.

Another AARP Sellout

Employee Advocate – – December 18, 2003

Helping the Bush administration pass flaky Medicare legislation is not the only time AARP has stabbed seniors in the back. The AARP joined nursing homes in seeking caps on pain and suffering damages in abuse and neglect lawsuits, according to the Miami Daily Business Review.

It was reported that people were stunned by the reversal of AARP. The Florida chapter of AARP went from supporting seniors to plotting against them.

Last year, AARP was instrumental in defeating proposals to impose pain and suffering damage caps.

Frank Petosa chairs the Academy of Florida Trial Lawyers' nursing home task force. He said “It's disappointing that AARP has aligned themselves with nursing homes rather than with the families.” I'm wondering about what kind of message AARP is sending to its members by taking this position of limiting residents' rights.”

Mark Johnson is a spokesman for AARP Arkansas who expressed disagreement with the Florida chapter. He said “We are against giving any more tort immunity to nursing homes. A lot of people are against trial lawyers, but we think the system of legal redress works.”

Marilyn Askin, president of the New Jersey chapter of AARP, also disagrees with the Florida chapter. She wrote: “The potential threat of appropriate economic consequences serves as a deterrent against neglect and abuse of frail elderly patients residing in nursing homes.”

Democracy Crumbles Under Cover of Darkness

Seeking Secret Energy Meetings Approval – December 17, 2003

(12/16/03) - The Supreme Court yesterday granted the Bush Administration's requests to intervene in two important environmental cases the White House wants overturned.

The first one involves whether the White House can continue to keep secret records of Vice President Cheney's Energy Task Force, which shaped the controversial energy bill currently stalled in the Senate. The second case involves whether the Administration should have to conduct an environmental study before issuing permits to trucks from Mexico.

In the energy task force case, public interest groups won access to some information about who was on the task force and how it operated, but Cheney appealed.

Created by presidential executive order in 2001, the task force routinely met behind closed doors and recommended a host of industry-backed proposals, such as opening the Arctic National Wildlife Refuge and other public lands to oil and gas drilling. Cheney has repeatedly refused to reveal who his group met with, even to Congress's investigative arm, the General Accounting Office.[1]

In the Mexican trucks case, a federal appeals court ruled in January that the Administration violated environmental laws when it took steps to grant Mexican trucks full access to U.S. highways without adequately reviewing their environmental impact.

At least 30,000 Mexico-domiciled diesel trucks could enter the U.S. per year, including many older, pre-1994 trucks that are the most egregious polluters. A study shows that by the year 2010, trucks from Mexico will emit twice as much particulate matter and nitrogen oxides as U.S. trucks.[2]

Meanwhile, one of the Supreme Court justices who will decide "Cheney v U.S. District Court" was the guest of the vice president last week, the Washington Post reports.[3] Justice Antonin Scalia joined Administration leaders celebrating the holidays at the Cheneys' Christmas party in the vice president's residence last Thursday.

[1] GAO report, "Energy Task Force: Process Used to Develop the National Energy Policy," Aug. 25, 2003.
[2] Lawsuit background.
[3] Washington Post, Dec. 15, 2003.

More on the secret energy meetings:

The Secret White House

Another IBM Age Discrimination Suit

Employee Advocate – – December 8, 2003

Craig Wolf reported in the Poughkeepsie Journal that IBM is facing another employee age discrimination lawsuit. This time the age bias charge is not regarding pensions, but layoffs.

The complaint was filed in U.S. District Court for northern California in San Jose October 7, 2003. It charges that IBM violated the Age Discrimination in Employment Act, a related law, and the Older Workers Benefits Protection Act (OWBPA). The charge also contends “IBM terminated plaintiffs in violation of ERISA in order to avoid its increasing pension cost obligations to employees with greater years of service.”

Jeff Young, a plaintiff attorney, said “A lot of people are under the misimpression that because they signed a release and covenant not to sue, to get severance pay, that they are prohibited now from suing IBM for age discrimination. It's our position that the release that they signed was not valid, that it doesn't comply with the provisions of the Older Workers Benefits Protection Act.”

Duke Energy had employees signing some far fetched covenants not to sue during the last layoff. But the chance of Duke being sued for age discrimination in layoffs is slim indeed. It appears that Duke keeps its nose very clean in this area.

During the last layoff, many employees volunteered. This was a win/win situation, with the chance of lawsuits almost nil.

The forced layoffs were by seniority. Again, it appears that Duke is squeaky clean regarding layoff age discrimination. It is unfortunate that pensions and benefits were not handled as carefully.

Stealth Price Gouging

Employee Advocate – – December 7, 2003

Some companies are apparently adding bogus fees to their bills, according to the New York Times. Only the customers who vigorously complain receive restitution. Wireless phone companies are notorious for this.

A class-action lawsuit cost Verizon $20 million for overcharging California customers. Similar cases are now being pursued nationwide.

Verizon is not the only phone company to get caught with its hand in the cookie jar. Class-action lawsuits, related to fees and overbilling, have also been settled by Sprint, Qwest, SBC, AT&T, and MCI. Cingular is facing similar lawsuits.

FTCR Sues Cingular and Nextel

In Bad Hands with Allstate

Employee Advocate – – December 4, 2003

Allstate Corporation and its affiliates will refund $3.44 million to Texas policyholders, according to the Houston Business Journal. Over 23,000 Texas policyholders overpaid for vehicle repairs covered by Allstate.

Allstate Corp. and its affiliated insurance companies have agreed to refund $3.44 million to Texas automobile insurance policyholders after reaching a settlement with the Texas Attorney General's Office.

Allstate was extracting money from policyholders by claiming that newer parts increased the vehicle value. Allstate was basically saying that a car was worth more after it was wrecked and repaired than it was before it was wrecked!

Texas Attorney General Greg Abbott took legal action in 2000. He said “This practice is an end-run around the standard Texas auto policy, and it hits consumers hard in the pocketbook.”

Allstate will also pay attorneys' fees the Attorney General's Office.

Supreme Court to Hear Pension Case

Employee Advocate – – December 3, 2003

The Supreme Court said on Monday that it will hear a pension case, according to the Washington Post. The decision will be about whether federal law protects early retirees from losing benefits if they go back to work.

The Employee Retirement Income Security Act’s "anti-cutback" provisions forbid plan sponsors from amending plans to confiscate earned benefits. ERISA has been twisted, bent, perverted, and ignored by corporations for years. It had to come down to the Supreme Court, Congress, or both taking action.

The case involves two early retirees who were drawing their pensions. The company changed the rules to knock them out of their pensions, because they were employed. When they sued, they lost in federal district court, but the Seventh U.S. Circuit Court of Appeals reversed the ruling.

To no ones surprise, the Bush administration is in favor of the retirees losing their pension benefits.

Xerox Offers Cash Balance Pension Settlement

Xerox – Press Release – November 15, 2003

STAMFORD, Conn., Nov. 14, 2003 -- The Xerox Corporation (NYSE: XRX) Retirement Income Guarantee Plan has reached an agreement in principle to settle the pension-related Berger v. RIGP litigation. The terms of the proposed agreement require RIGP to settle the case for $239 million. The final settlement is subject to the negotiation of a definitive agreement and court approval.

In April, Xerox reported a first-quarter pre-tax charge of $300 million to cover any potential pension-funding shortfall should RIGP be required to pay damages in this case.

If the court approves the final agreement, RIGP will pay the settlement amount from its assets. Should the company need to make a cash contribution to compensate for a potential shortfall in the plan related to this litigation, it would not be required to begin doing so until 2005.

RIGP is the primary pension plan for Xerox's salaried employees in the United States. On July 25, 2000, a lawsuit was filed against RIGP in the United States District Court for the Southern District of Illinois. The plaintiffs claim that the plan improperly calculated lump-sum distributions from cash balance retirement accounts, resulting in lower benefits for certain employees who left the company between Jan. 1, 1990, and Dec. 31, 1999.

Former Xerox employees who are eligible to receive damages will receive notification when the settlement is approved.

The Duke Energy, IBM, and Xerox Cash Balance Plans


Employee Advocate – – November 13, 2003

Employee Retirement Income Security Act (ERISA) is weak, but is all employees have. It needs to be fixed. It needs sharp teeth that corporations cannot easily evade. 3rd Circuit Judge Edward R. Becker is calling on Congress to fix ERISA, according to The Legal Intelligencer.

In his DiFelice v. Aetna opinion, Judge Becker wrote that he wanted “to add my voice to the rising judicial chorus urging that Congress and the Supreme Court revisit what is an unjust and increasingly tangled ERISA regime.”

He further wrote that “lower courts are routinely forced to dismiss entirely justified complaints by plan participants who have been grievously injured by HMOs and plan sponsors, all because of ERISA, the very purpose of which was to safeguard those very participants.”

Judge Becker added “The vital thing, however, is that either Congress or the court act quickly, because the current situation is plainly untenable.”

HMO’s will cover your medical treatment, as long as it can be performed cheaply. If your treatment runs into any money, you may be on you own. When you are in the hospital, and need immediate treatment, you have little time to file a lawsuit against the HMO. Your other options are to pay for your own treatment or accept whatever treatment the HMO is willing to pay for. In medical cases, if first you don’t succeed, you may be dead.

The plaintiff, Joseph DiFelice, was faced with such a dilemma. The HMO refused to pay for the treatment he needed. He accepted a cheaper alternative that the HMO would pay for. The results were disastrous. Mr. DiFelice developed a serious bone and soft-tissue infection. “Significant portions” of tissue and bone then had to be removed and his pectoral muscle was reconfigured surgically, the suite alleged.

Aetna attorneys denied that the insurer's decision was not a medical one! Why? Because it was based on plan language!

Judge Becker wrote “To me this makes no sense… for Aetna made precisely the same individualized determination of medical necessity as [the doctor]…Welfare benefit plans are far less regulated than pension plans.”

That may be true, but many employees can tell you that ERISA does not do too well protecting pensions either! That is especially true when cash balance plans are used. These plans were designed from scratch to exploit the weaknesses of ERISA. Neither HMO’s nor cash balance plans were in existence when ERISA was passed in 1974. Both use word play to avoid paying earned pensions and needed medical treatment.

Supreme Court to Hear Phantom Case

Employee Advocate – – November 1, 2003

The Supreme Court will hear a phantom case, according to The Christian Science Monitor. It was said to be the case that does not exist. No public documents can be found. Attorneys are forbidden to speak about the phantom case. Nevertheless, two federal courts have conducted hearings and issued rulings.

This is the secret case of G. W. Bush refusing to reveal 9-11 documents, MKB v. Warden (No. 03-6747).

Attorney General Ashcroft and V. P. Cheney also love to scurry around in secrecy. Is the court that selected G. W. Bush for the White House likely to ruffle his feathers?

Employee Jury Award Doubled

Employee Advocate – – October 22, 2003

An employee had her Family and Medical Leave Act (FMLA) court award doubled, according to the Connecticut Law Tribune. All Rene Palma asked for was to have half a day off work for two weeks, following her 1999 surgery.

The FMLA entitled her to much more time off work. But Pharmedica Communications chose to deny her meger request, and fired her. The company thought that it had a good excuse. The CEO had changed the employee manual and half days off were not allowed! CEO can change manuals all they want, but they cannot repeal federal law.

A jury found that the company had resorted to retaliation, because the woman had dared to explore her FMLA rights. Under the provisions of FMLA, the judge doubled her award to $140,000.

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