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Legal Issues

Government Investigations and Access to Information

The Fourth Amendment to the U.S. Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This amendment is an important proscription against the potential overreach of governments or public agencies seeking information from private citizens, businesses, and other organizations. Government agencies attempting to make a legal case against an individual or an organization must adhere to legal restrictions and guidelines in their efforts to obtain information useful in investigations and legal proceedings. The public’s right of access to information is also limited and restricted, with laws such as the Freedom of Information Act (FOIA) proscribing what, when, and how information is to be made public.

Governments have a number of ways in which to gather information. In the context of government oversight and regulation of industries, financial sectors, and other areas of concern, the means by which regulators and government agencies can and does vary according to particular circumstances and situations. At the most basic level, regulators often receive (and transmit) information to and from those that are subject to such regulation. Put simply, “regulators talk to the regulated”(Carter and Harrington, 2000). The information gathered this way is often “communicated in an informal manner and on a voluntary basis,” (Carter and Harrington) and it is this typical form of information-gathering that underpins much of government oversight and regulation.

In instances where the government is attempting to bring a legal case against a business of organization over which it has regulatory power, the need for access to information is of significant concern; acquiring information is what gives regulators the requisite power to successfully prosecute such cases. As an example of how regulatory agencies exert power and gather information in the context of legal proceedings, it will be helpful to examine several specific instances of such activities by a government agency. While the Drug Enforcement Agency (DEA) is responsible at the federal level for the U.S.’ efforts to combat the problems associated with illegal drugs, it is also responsible for regulatory oversight of the handling of legally-prescribed controlled medications. In recent years, the abuse of prescription pain medications and other prescription drugs has received significant attention in the media, and has prompted both greater scrutiny and legal action on the part of the DEA (dea.gov, 2013). When conducting investigations related to the handling and dispensation of medications subject to the Controlled Substances Act (CSA) the DEA must use a number of methods to acquire useful and necessary information.

At its core, the most fundamental question about the government’s interest in acquiring information is whether or not the request is reasonable. Government agencies and representatives who seek information from private citizens or from businesses and other organizations must have a reasonable purpose for asking for such information (Carter and Harrington). If the request for information or access might potentially turn up evidence that a crime or crimes have been committed, it is sometimes necessary to determine if the request for access is reasonable before such access is granted. For example, if the Occupational Safety and Health Administration wishes to carry out an inspection of a business, the OSHA representative typically needs a warrant (Carter and Harrington). If consent for the inspection is granted without a representative of the business requesting a warrant, the information uncovered in the inspection is typically useful and admissible in legal proceedings. If the request to produce a warrant is denied, then the business does not have to grant consent for the search unless and until OSHA is granted a warrant.

In the context of DEA oversight of the handling of legally-prescribed controlled substances, the agency is legally afforded strict control and oversight of the activities of physicians and other prescribers, pharmacists and pharmacies, wholesale and retail distributors of such medications, and the companies that manufacture these medications (dea.gov). A significant body of regulatory procedures, guidelines, and laws has been established that are intended to assure that the activities of these various actors are transparent and that the information related to such activity is easily and readily available to the DEA. Officials from the DEA and the U.S. Department of Justice (DOJ) have used this information to build cases against individuals and organizations that have violated the relevant policies and laws related to the handling of controlled prescription medications; when such information is not forthcoming, these same officials have used the lack of information as the substantive standard for demonstrating a reasonable need for this information (justice.gov, 2013).

In recent years the state of Florida has received intense scrutiny from the DEA for activities within the state that fail to adhere to the guidelines and laws that regulate the handling and dispensation of a number of medications covered by the CSA. According to DEA officials and government prosecutors, Florida has been home to a significant number of so-called “pill mills” (dea.gov); these pill mills are doctor’s offices that prescribe (and sometimes even dispense) pain medications and other controlled substances at rates that the DEA considers to be outside the boundaries of legitimate medical use. These medications are subject to widespread abuse by addicts, and the DEA has charged that the pill mills are contributing to the problem by flooding the streets of Florida with these medications (dea.gov).

Oversight of these medications is supposed to be strict, with doctors limiting the amount of medications they prescribe, pharmacists and pharmacies watching for prescriptions in amounts that should raise red flags, and distributors flagging orders from pharmacies that appear to be excessive. In a recent case that was settled between the DEA and Walgreen’s pharmacy, a large national chain, Walgreen’s agreed to pay a fine of $80 million and to overhaul its methods of handling and dispensing controlled medications (dea.gov). Among the charges that the DEA leveled against Walgreen’s were accusations that the chain and several of its individual pharmacy locations had failed to maintain adequate records and failed to notify the DEA, per statutory regulation, about suspicious prescriptions at the retail level and excessive orders at the distribution level (dea.gov). It is this sort of information that would –or at least should- normally be communicated between the regulated and regulators. When discrepancies in records and errors in reporting were uncovered by the DEA, these failures served as the foundation of the agency’s requests for the warrants needed to uncover more information and ultimately to successfully prosecute their case.

Although the DEA has made the argument that the availability of these controlled medications on the streets poses a significant public health risk, there are a number of factors that make it difficult, or sometimes impossible, for the public to acquire information related to the activities of the DEA both in terms of these investigations and of the overall activities of the agency. The Freedom of Information Act (FOIA), which ostensibly makes it possible for the public to request information about the activities of government, does not always assure that such requests will be met. A number of organizations and individuals who have made FOIA requests to the DEA and DOJ about the activities of the DEA have been denied; according to a recent report, the rate at which such FOIA requests about the DEA have been denied has jumped 114% since the beginning of the administration of President Barack Obama (Rumsey, 2012). Other legal restrictions, such as those that protect the privacy of patients’ medical records, further limit the amount of information available to journalists and other investigators where the DEA is concerned.

There are laws that further protect and enhance the rights of the public to access information about some aspects of the medical and pharmaceutical industries. The Sunshine Act for physicians provides transparency of payments from pharmaceutical companies to physicians, which can expose instances where physicians are receiving payments from the same companies whose medications these doctors are dispensing (healthcaredatasolutions.com). Sunshine Laws offer little in the way of providing access to information about the activities of the DEA, however, despite the fact that the activities of this agency may be as significant an area of public concern as are the activities of the individuals and organizations the DEA regulates. In any instance where information is useful and necessary, whether for use by the government of for the edification of the public, there are a number of laws that are intended to ensure such access.

References

Carter, L. H., & Harrington, C. B. (2000). Administrative law and politics: Cases and comments. New York, NY: Longman.

DEA.gov / Denver News Releases, 05/30/13. (2013, May 30). Retrieved from http://www.justice.gov/dea/divisions/den/2013/den061213.shtml

Pharma Compliance: License Verification | Healthcare Data Solutions | Healthcare Data Solutions. (2012). Retrieved from http://www.healthcaredatasolutions.com/hdsverify.html

Rumsey, M. (2012, July 17). The News Without Transparency: DEA FOIA rejections have increased 114 percent since the end of Bush administration – Sunlight Foundation Blog. Retrieved from http://sunlightfoundation.com/blog/2012/07/17/the-news-without-transparency-dea-foia-rejections-have-increased-114-percent-since-the-end-of-bush-administration/

Walgreens agrees to pay a record settlement for civil penalties under the Controlled Substances Act. (2013, June 11). Retrieved from http://www.justice.gov/usao/co/news/2013/jun/6-11-13.html

Categories
Legal Issues

The Bundeskartellamt has investigated the market for gas stations

The Article 101 was set in place in order to prevent collusive activity from occurring, more importantly prevent agreements made between cartels, and other corporations that would hinder free competition in the European internal market. In answering the question of “Is this evidence of illegal collusive activity as specified in Article 101 of the Treaty on the Functioning of the European Union?” In order to answer the question there are several arguments that can be made in order to see the problem in two sides. The first argument that can be made is that A-Level gas stations are not aware of the B-Level gas stations changing their prices to match theirs, as their prices are set by larger corporations that they own. Another argument that can be made is that A-Level gas stations are engaging in illegal collusive activities that are setting prices in order to get more money out of the customers. One of the last arguments that can be made is that the B-Level gas stations are trying to compete with the bigger gas stations by offering cheaper gas to customers than their larger counterparts.

The Bundeskartellamt (German Competition Authority) has the right in investigating the gas stations potential illegal collusive activities. As this type of practice that is been done is typically known as price gauging, it is major concern that disrupts the free competition of big and small businesses.  This illegal practice could typically harm most B-Level gas stations, and more importantly the customers, as they are being made to pay for gas at higher price due to the activities of A-Level gas stations. In the first argument that can be made is that A-Level gas stations are not fully aware of the activities surrounding the pricing of B-Level gas stations. According to Article 101 of the Treaty on the Functioning of the European Union, “directly or indirectly fix purchase or selling prices or any other trading conditions.” (Article 101, 2013) What the case provides are that the A-Level gas stations that are mostly owned by larger corporation fix prices (raise or decrease) at all of their locations. They have the ability to set prices and can no way change the prices of B-Level gas stations, however, practices that have been discovered is that B-Level mirrors the pricing of A-Levels as they continually change prices. Corporations will not be aware of pricing but, can set prices by catering to the customer demand, the prices of gas in other busy areas, and the type of gas that is provides. Large corporations are mainly concern with making a profit and staying ahead of the competition.

The second argument that can be made however is that, A-Levels gas stations are in agreement with other A-Level gas stations or B-Level gas stations in order to routinely set prices during high peaks in demand in order for both levels to receive a sizable profit. With both levels of gas stations being in cohorts, this practice signals illegal activity that can be prosecuted under the Article 101. From the case, Bundeskartellamt found when one of the A-level gas stations raised its price, neighboring gas stations typically would follow within a matter of hours. These actions reflect a scheme that could be used in order to control the gas supply, and share in the market. Under these provisions, they are committing criminal acts. In the last argument, the B-Level or A-Level gas stations that didn’t follow suit, then the A-Level gas station would quickly reverse the increase. From these activities, they could be in violation of another provision that prohibit businesses, “apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.”(Article 101, 2013) This harms B-Level gas stations that change their prices in order to keep up with the competition of A-Level gas stations. B-level gas stations will simply be responding to the actions of the bigger ones in order keep up with the market and acquire customers with lower prices. In the first argument presented, the A-Level gas stations were not at fault and simply following the directions of the larger corporations that own them. In the last two arguments, they were in violation of the provisions in the Article 101, in which the Bundeskartellamt has just cause to investigate the gas stations.

References

“Article 101”. (2013). Eur-Lex. Retrieved from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E101:EN:NOT

Categories
Legal Issues

Dispute Resolution in Social Media and Internet Transactions

The leading social media site, facebook, has over 1 billion worldwide users. Facebook provides a way for individuals to interact with each other, and also provides a forum for businesses to promote themselves, establish and maintain contact and communication with customers and potential customers, and advertise their goods or services. While facebook can help businesses support and sustain their interests, the social media site is not an e-commerce site. Most businesses that promote themselves on facebook use the platform as a means to draw customers to physical locations or to entice customers to follow links to the businesses’ sites for the purpose of conducting transactions online. When a customer has an issue with a transaction and wishes to dispute charges, return products, or otherwise resolve problems related to the transaction, most businesses typically have rules and guidelines in place to deal with such issues. When the established rules or policies fail to facilitate a satisfactory resolution for the customer, there are other options the customer can explore. The means of disputing the outcome of a transaction outside of the confines of the established guidelines and procedures businesses have in place is generally referred to as Alternative Dispute Resolution. In the world of e-commerce, it is becoming increasingly common for ADR to take place through online dispute-resolution organizations; this particular subset of ADR is typically referred to as Online Dispute Resolution, or ODR (Cortes, 2012).

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Legal Issues

Appellee Goldberg v. Appalent Kelly

Docket #62

397 US 254 (1970)

Procedural History:

John Kelly was the leader of a group of people who were receiving benefits through either the federal program Families with Dependant Children, or a New York State monetary housing assistance programs. Before John Kelly’s suit, it was commonplace for the State of New York to discontinue aid to citizens without any benefit of appeal or closer examination. Many of these citizens attempted to recover benefits, only to find a grueling appeals process that was not based on evidence, examination, or cross-examination. Kelly represented a large line of people who had not received notice before losing their aid. When John Kelly made it a Constitutional issue, and it was accepted as a case into the Supreme Court, the State of New York then tried to implement a hearing process.

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Legal Issues

The Legally Astute Manager

In the article entitled “Winning Legally: the Value of Legal Astuteness” the significance and the necessity of legally astute management are described. Legally astute managers understand the law does not simply create restrictions on business activities; it also creates opportunities. By taking the systems approach to business and society, the legally astute manager can understand the larger societal context in which the business functions, and leverage the law and the legal system to afford the business a competitive advantage. There are four primary components to legally astute management; the following discussion will examine these components and consider them within the context of conducting consumer transactions through social media outlets.

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Legal Issues

Eighth Circuit Renews OSHA’s Authority to Issue Multi-Employer Citations in the Construction Industry

As outlined in this Morgan Lewis Labor and Employment Lawflash, dated March 2, 2009, the United States Court of Appeals for the Eighth Circuit decided in favor of the Occupational Safety and Health Review Commission’s original decision related to the case Secretary of Labor v. Summit Contractors, Inc. (No. 03-1622, 4/27/07). This favorable decision apparently renews and expands upon OSHA’s “authority to issue citations to general contractors for violations” of U.S. construction standards which according to the American Society for Testing and Materials (ASTM) often includes standards concerning the proper use and application of building adhesives, cement, masonry, roofing materials, thermal insulation, and especially plywood and other types of lumber (Construction Standards, 2013).

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Legal Issues

JP Morgan

The tort action of “interference with Contractual Relations allows for a plaintiff to be able to recover damages that are based on the claim that a defendant interfered with the plaintiff’s contractual relations. The factors of an intentional interference with the contractual relations claims are that first, the valid contract made between the plaintiff and a third party, and secondly the defendant’s knowledge of the contract. Third, the defendant’s intentional acts designed to produce a breach or disruption of the contractual relationship, fourth, the actual breach or disruption of the contractual relationship, and lastly the damage resulted.

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Legal Issues

Legal Issues Quiz 2

  1. B
  2. A
  3. A
  4. A
  5. A
  6. A
  7. B
  8. B
  9. B
  10. A
  11. Burglary
  12. Capacity
  13. Consequential Damages
  14. Dividends
  15. Reasonable
  16. Deed
  17. Holographic
  18. Consanguinity
  19. Paternity
  20. C
  21. B
  22. B
  23. D
  24. A
  25. B
  26. A
  27. B
  28. D
  29. If Ike files a battery suit against Brett, it is highly unlikely that he will prevail. Brett tackled Ike in the context of playing professional football. In such a context, Brett would not be considered to have the mens rea –the state of mind supporting criminal intent- to commit a crime. Brett was simply doing his job, and being tackled is simply a normal part of the activity of playing football. For similar reasons, Ike would also probably not prevail if he accused Brett of negligence. Applying the reasonable person standard to the circumstances, it is clearly a possibility that a professional football player might get injured during the course of playing the sport. It would not be reasonable to determine that Brett was negligent for tackling Ike, and it would be reasonable to determine that Ike should know he could be injured while playing.
  30. Because Bill and Pam have agreed that their son Billy will live with Pam on a daily basis, she will likely be granted physical custody of Billy. While courts used to be hesitant in granting joint legal custody, that is now the preferred option. In joint legal custody, both parents have a say in matters relating to health care, education, and other concerns regarding the children. In terms of awarding physical custody, the courts will consider the parents’ abilities and interest in providing a stable home environment and providing for the child’s emotional and physical needs. Because Bill and Pam are agreed that she will have physical custody, and because no facts are presented that indicate Pam would not be able to meet the requirements and standards of a parent with physical custody, it is likely that the courts will award physical custody to Pam and joint legal custody to Pam and Bill.
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Legal Issues

Losses due to car accident on March 10th 2009

  1. Referring to your Complaints and Disclosures, describe in detail your alleged damages including, but not limited to, economic damages, loss of income, medical rehabilitation, hospital and other expenses, loss of enjoyment of life, extreme pain and suffering, emotional distress, permanent impairment, permanent disfigurement, permanent disability, inconvenience and impaired quality of life, and all other injuries or damages setting forth in detail how you arrived at each monetary figure.
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Legal Issues

Health and the Law

As cigarette smoking increasingly becomes legislated and criminalized, it seems to me the nation is moving in a wholly inappropriate direction.  If there was a single lesson to be learned by the great failure of Prohibition in the early 20th century, it is that morality, or choices people make regarding substances, may not be successfully legislated.  The billions spent annually in the “drug war” equally attest to this reality.  It is one thing for a society to generally disapprove of kinds of conduct in which people use control substances.  A culture will inevitably come to conclusions regarding the rightness of such behavior, and this is a natural process.  At the same time, the imposition of these views carrying into the law and actually penalizing others is both unconscionable and unreasonable.  The former is supported by the fact that criminalizing such conduct violates the rights of the individual, who has the freedom to pursue a course potentially dangerous to their health; the lack of reason is in play because, as history has repeatedly shown, such criminalization merely enables black markets and generates other kinds of crime, and usually of more severe natures.

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Legal Issues

Legal Issues: Branches of Government

There are three arms of government namely legislative, executive and judicial.  The legislative consists of congress; house of the representatives and senate. It is also known legally as the legislature within a conceptual framework of the deliberate assembly. This body has the power to amend; pass and repeal laws. These laws are usually known as legislations or statutory laws. According to parliamentary system of governance the legislature is supreme (United Nations Development Program, 2013).

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Legal Issues

Business Start up

Starting a business is a hard, long, and confusing endeavor filled with much information, a lot of paperwork, but much instruction on how to steer your startup. When starting a business the basics of creating the name, deciding the market, and writing up the business plan is necessary in the initial steps to becoming a business owner. However, they are several important factors, financial, social, and more importantly legal factors that must require the assistance of a professional when starting your own business.

The job of a paralegal is to work as a legal correspondent in guiding individuals through legal matter, such as, starting a business. There are several aspects of starting a business the potential owner must keep in mind. The first step is deciding, what the business is. Once decided, the paralegal should reveal the importance of intellectual property, along with the need, if any, trademarking, and patenting the business. Whether it be online or in a physical location, the decision matters in terms of the different laws and regulations that are assigned. If starting a business in a physical place, environment laws, zoning regulations, insurance, taxes, work place safety laws, permits, and licenses are required to know, and this information is essential for the potential business owner. (SBA, n.d) When starting a business online the knowledge of sales tax, international sales tax, regulations, consumer protection, and customs are essential in success of the company.

One of the most important information that the paralegal needs to inform the potential owner, is contracts, there are an important day to day aspect that business owners must use to further their business. Contracts are initial in confidentiality agreements, purchase of goods or services, financial obligations, joint ventures, with employees, intellectual property, and other aspects. The paralegal must inform on the basis of reading the fine print, knowing the laws before signing, and knowing the consequences of the contract.

Overall, starting a business is long road, with a big payoff if successful. However, when starting out, there is a lot of information that needs to be obtained in order to be a success. The need for financial, social, and legal advice will aid in navigating through the startup phase. The paralegal’s job is to inform the potential owner in the confusing legal requirements and information that will help in progressing the business into whatever area or focus that the business owner entails.

References

“Learn About Business Laws & Regulations.” SBA. N.d http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business/understand-business-law-r

 

“Small Business Legal Issues: Contracts.” Virtual Advisor. 2009. http://www.va-interactive.com/inbusiness/editorial/legal/ibt/legal_is.html

 

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Legal Issues

State of Washington V. Antonio B. Cantu

Statement of the facts

The 17 year old Antonio B.Cantu was convicted for burglary on residential property. This was because of the allegation that he entered his mother’s home; he took some of her possessions after breaking into the bolt locked door of the bedroom. Noyola Moncada, the mother of Cantu stays with her daughter and boyfriend. The morning that the crime was committed, Sophia, the daughter of Noyola had called the police station in Moses Lake and informed the Miers, the police in charge that, Cantu had left the house after entering the bedroom by breaking and removing the bolt that locked the door. On visiting the site, Miers saw that the doors dead bolt was indeed broken. In addition, Sophia indicated that Cantu went out of the house with some items that included the alarm clock that belongs to him that he had left in his mother’s room. When Moncada came to   home, she reported to Miers that Cantu took money and beers that were in the room. According to Moncada testimony, Cantu was not staying in the same house where she lived with her daughter and boyfriend and therefore Cantu was not given the right and permission to take any thing from her room .she also indicated that the money and the beer that was missing was returned by her nephew the same day it disappeared.

Statement of the issue

Did Cantu violate the law that limited his entry into the bedroom of her mother?

The reasoning that supports the holding

Cantu had been charged for each theft that he had committed by taking the property in her mother’s room, residential burglary and having alcohol while he was not and adult but a minor. Cantu was found guilty by the courts for residential burglary while the evidence the three other counts were insufficient. The appeal court found that the evidence provided before it was substantial to support the decision that the juvenile offender was not given the right to access his parent’s home especially in their absence. This is further because the mother had made it certain that he was not allowed in the house unattended.

The defendants argued that Cantu being only seventeen and therefore a juvenile, it was presumed that he had the license and permission to enter his parents’ home. Cantu had testified that he had run into his mother’s room and broke it while playing with is dog. While this may be true, the entry into the locked bedroom constitutes an unlawful entry since it is burglary. In State v. Bergeron, 105 Wash (1985);

Based on Sandstrom v. Montana, 442 U.S. 510, (1979), Cantu argued that since his mother had not totally stopped him from ever stepping in the house again, the limitation is insufficient since the lock on the door meant that he could not enter the bedroom, on the other hand, the state is of the opinion that it is not necessary to prove the express limits especially where a son is concerned and as such only lock at the door was enough to indicate that entry was prohibited.

In Steinbach, the courts found that the juvenile had all the rights to enter and be in her mother’s home. This is because he was not explicitly prohibited from the entry and therefore the entry is not unlawful.

In proving the residential burglary charges, the state had the responsibility of convincing the courts that Cantu entered not only entered his mother’s room illegally but also taken property that he was not permitted. This is because he was not invited or licensed and also was not entitled the privilege of entering the bedroom.

The conclusion

Yes the Antonio B. Cantu was liable for unlawful and residential burglary.

Bibliography

State v. Bergeron, 105 Wash (1985);

Sandstrom v. Montana, 442 U.S. 510, (1979),

STATE v. Antonio B. CANTU, 76198 Washington (2006)

 

 

 

Categories
Legal Issues

Terry v. Ohio Application Case. Sibron v. New York, 392 U.S. 40 (1968).

This case was similar to Terry v. Ohio in which the precedent regarding the fourth Amendment was established. Sibron was seen and search by a New York Police officer for possession of illegal drugs. The officer reached into the Sibron’s pocket and found heroin for which he was arrested and charged. Sibron later tried to appeal the sentencing by saying the search was illegal. Both The intermediate state appellate court and New York Court of Appeals affrimed Sibron’s sentencing by applying the “stop and frisk” law – N.Y.Code Crim.Proc. § 180-a. Sibron served his six months with community service (US supreme court, 1968).