Justice Scalia’s Death Prompts Dow Chemical to Settle Lawsui

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Justice Scalia’s Death Prompts Dow Chemical to Settle Lawsui

PostPosted by hopeful19 » Sun Feb 28, 2016 12:18 pm

"The 2008 Supreme Court decision in Riegel v. Medtronic, denied patients injured by medical devices the ability to seek compensation for their injuries and gave medical device makers blanket immunity. This ruling removed one of the industry's most important incentives to maintain product safety after FDA approval and disclosure of newly-discovered risks to patients and physicians."

https://www.law.cornell.edu/supct/html/06-179.ZO.html
SUPREME COURT OF THE UNITED STATES

DONNA S. RIEGEL, individually and as administra-tor of the ESTATE OF CHARLES R. RIEGEL,
PETITIONER v. MEDTRONIC, INC.

on writ of certiorari to the united states court of appeals for the second circuit


Justice Scalia delivered the opinion of the Court.

The Court's opinion, written by Justice Antonin Scalia

https://www.oyez.org/cases/2007/06-179


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http://www.nytimes.com/2016/02/27/busin ... wsuit.html



Justice Scalia’s Death Prompts Dow Chemical to Settle Lawsuit



Breakingviews

By ROBERT CYRAN FEB. 26, 2016


Antonin Scalia’s empty Supreme Court seat has cost Dow Chemical $835 million.

That is how much the chemical company is paying in a decade-old lawsuit that was heading to the top court. Dow decided the death of Justice Scalia, a conservative judge, changed the balance of the suit and settled. It is a reminder that the gridlocked politics surrounding the Supreme Court have real-world effects.

Dow’s decision puts to rest the urethane price-fixing suit. Dow thought it had a good shot at setting aside a lower court’s $1.06 billion award to the plaintiffs on the grounds that it violated class-action law.

Justice Scalia’s death threw a wrench into this calculation, however. Not only did Dow cite two cases with rulings written by Justice Scalia in its arguments to the Supreme Court, but a split vote — now possible with four conservative judges and four liberals — means lower court decisions stand.

Perhaps Dow would have had to change its thinking and settle the case even if Washington was running smoothly. A liberal-leaning addition to the Supreme Court, quickly appointed, could have meant a majority of justices would support the earlier award to the plaintiffs.

But the stalemate on the empty seat may endure for more than a year because of the standoff in Congress. Republican lawmakers are saying that they will not even consider any nominee put forward by President Obama to succeed Justice Scalia, and the chosen candidate would need the Senate’s approval. No wonder Dow also referred to rising political uncertainties along with the heightened risk of an unfavorable outcome.

It’s easy to see the fight over Justice Scalia’s spot as purely political high drama. But Dow’s decision shows that it matters well beyond the halls of Congress and the Supreme Court. It’s one more uncertainty weighing down businesses and citizens seeking justice.

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https://theintercept.com/2016/02/27/ant ... t-justice/

Antonin Scalia: The Billion-Dollar Supreme Court Justice :shock:

David Dayen

Feb. 27 2016, 7:33 a.m.


Supreme Court Justice Antonin Scalia was worth billions of dollars to corporate America, if a Dow Chemical settlement made public Friday is any indication.

Dow was in the midst of appealing a $1.06 billion class-action antitrust ruling, after a jury found that it had conspired with other chemical companies to fix prices for urethane, a material used in furniture and appliances.

But because of Scalia’s death and the sudden unlikelihood of finding five votes on the Supreme Court to overturn the case, Dow decided to settle for $835 million, the bulk of the original award.

“Growing political uncertainties due to recent events with the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class-action suits have changed Dow’s risk assessment of the situation,” the company told Bloomberg News.

The case reveals how corporations have used the conservative majority on the court as a safety valve to nullify unfavorable rulings. As the Alliance for Justice has documented, time and again, the Roberts Court has issued 5-4 rulings that protect big corporations from liability, limit access to justice for workers and consumers, and allow companies to evade regulations on the environment, racial and gender discrimination, and monopolistic practices.

The most famous of these Court rulings, the Citizens United decision, enabled unlimited corporate spending in elections to attack regulatory structures at the legislative and executive branch. But the corporate stranglehold on the judicial branch provided a backstop, another venue to relieve big business from accountability.

Scalia’s death on February 13 changed that, at least temporarily. The 4-4 split between liberals and conservatives on the Court means that, in most controversial cases, a deadlock allows the lower court ruling to stand. And in nine of the 13 federal district courts of Appeals, Democrats have appointed the majority of judges, making it harder for corporations to get a favorable judgment.

This is not just a theoretical matter; it comes down to dollars and cents, as the Dow Chemical case shows.

The company had reason to think it could successfully appeal the $1.06 billion ruling against it, as long as Scalia was there.

Scalia has been on the majority side in striking down class-action lawsuits in the past, and wrote the opinion in Wal-Mart v. Dukes, which prevented company employees from pursuing a gender pay equity suit because the1.5 million women in the class couldn’t prove that each one of them faced exactly the same type of discrimination.

In the settlement, Dow did not take responsibility for price fixing, continuing to argue that the lawsuit was “fundamentally flawed.” But without a Scalia around to bail them out, their arguments have scant effect.

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Scalia Took Dozens of Trips Funded by Private Sponsors

http://www.nytimes.com/2016/02/27/us/po ... nsors.html

WASHINGTON — Antonin Scalia was the longest-tenured justice on the current Supreme Court and the country’s most prominent constitutionalist. But another quality also set him apart:

Among the court’s members, he was the most frequent traveler, to spots around the globe, on trips paid for by private sponsors.

When Justice Scalia died two weeks ago, he was staying, again for free, at a West Texas hunting lodge owned by a businessman whose company had recently had a matter before the Supreme Court.

Though that trip has brought new attention to the justice’s penchant for travel, it was in addition to the 258 subsidized trips that he took from 2004 to 2014. Justice Scalia went on at least 23 privately funded trips in 2014 alone to places like Hawaii, Ireland and Switzerland, giving speeches, participating in moot court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong.


Many of the justices are frequent expenses-paid travelers, a practice that some court scholars say is a minor matter, given that many of the trips involve public talks that help demystify the court. But others argue that the trips could potentially create the appearance of a conflict of interest, particularly when the organizations are known for their conservative or liberal views. Some groups at times use the presence of a Supreme Court justice as a way to pull in members or other paying guests.

Supreme Court Travel

A look at the numbers of privately paid trips taken by Supreme Court justices from 2004-2014, ranked top to bottom by frequency of travel per year.




Scalia

258 trips in 11 years
23.5 trips per year


Breyer

185 trips in 11 years
16.8 trips per year


Sotomayor

67 trips in 5 years
13.4 trips per year


Kennedy

132 trips in 11 years
12.0 trips per year


Ginsburg

117 trips in 11 years
10.6 trips per year


Alito

83 trips in 9 years
10.1 trips per year


Kagan

33 trips in 4 years
8.3 trips per year


Thomas

86 trips in 11 years
7.8 trips per year


Roberts

48 trips in 10 years
4.8 trips per year


Source: Center for Responsive Politics

“I am worried about the public perception of gratitude, even if there is no effect on your behavior,” said Stephen Gillers, a professor at the New York University School of Law who specializes in legal ethics. “And the greater the luxury, the greater the risk of public suspicion.”

Ethical standards prohibit judges from accepting gifts from anyone with a matter currently before the court. But those guidelines presented no barrier to John Poindexter, who invited Justice Scalia to stay at his West Texas ranch.

Mr. Poindexter is the owner of J. B. Poindexter & Co., a manufacturing firm based in Houston with more than 4,000 employees. One of his companies, the Mic Group, was a defendant in an age discrimination lawsuit filed by a former employee who unsuccessfully petitioned the Supreme Court for a review last year.

Mr. Poindexter, according to a former general manager at the ranch, is also a leader in the International Order of St. Hubertus, a worldwide organization of hunters, as, apparently, were several other guests during Justice Scalia’s visit. The Washington Post first reported the guests’ ties to the hunting group.

Mr. Gillers and other legal experts said they saw nothing wrong with Mr. Scalia’s accepting a free room at Mr. Poindexter’s lodge. While the Ethics in Government Act, adopted after Watergate, requires high-level federal employees, including judges, to fill out disclosure reports for reimbursements worth more than $335, the visit to the ranch might not have required a formal disclosure, because accommodations provided by a private individual are exempt under current rules.

But Gabe Roth, the executive director of an organization called Fix the Court, said that the Supreme Court needed a formal vetting process for privately funded trips, similar to the one used by Congress, where ethics committees sign off on trips before lawmakers take them. “This is just part of the pattern of a lack of transparency from the high court,” he said.

After Justice Scalia, the second most active traveler on the current court is Justice Stephen G. Breyer, who took 185 privately paid trips from 2004 to 2014, according to a database built by the Center for Responsive Politics, based on individual reports filed by the justices. Chief Justice John G. Roberts Jr., based on a yearly average, had the fewest of these privately funded trips — a total of 48 from 2005 to 2014, the last year for which records are available. Over all, Supreme Court members disclosed 1,009 paid trips between 2004 and 2014.

The destinations often are luxurious, including the Casa de Campo Resort in the Dominican Republic, where Justice Samuel A. Alito Jr. was listed as a speaker for an event last February, or Zurich, where Justice Scalia traveled at least three times on privately funded trips.

In 2011, a liberal advocacy group, Common Cause, questioned whether Justice Scalia and Justice Clarence Thomas should have disqualified themselves from participating in the landmark Citizens United case on campaign finance because they had attended a political retreat in Palm Springs, Calif., sponsored by the conservative financier Charles G. Koch. Mr. Koch funds groups that could benefit from the ruling. The disclosure report filed by Justice Thomas made no mention of the retreat. It said only that he had taken a trip, funded by the Federalist Society, a conservative legal group, to Palm Springs to give a speech.

Over roughly a decade, Justice Scalia took 21 trips sponsored by the Federalist Society, to places like Park City, Utah; Napa, Calif.; and Bozeman, Mont. The Federalist Society also paid for trips by Justice Alito during that period, but not for any liberal justices, the disclosure reports show.

“There are fair questions raised by some of these trips about their commitment to being impartial,” said Stephen Spaulding, the legal director at Common Cause. “They are dancing so close to the line with overtly political events.”

Legislation is pending in the House and the Senate that would require the Supreme Court to create a formal ethics system, beyond the Ethics in Government Act, similar to the one that governs actions of all other federal judges. That system is known as the Code of Conduct for United States Judges.

Chief Justice Roberts has argued that the Supreme Court, even though it generally abides by this judicial ethics code, is not obligated to do so. It restricts how much judges can be paid for private travel, and limits other activities outside the court, such as allowing private organizations to use “the prestige of judicial office” for fund-raising purposes.

“The questionable activities of some of our Supreme Court justices have been well documented,” including “participating in political functions,” Representative Louise M. Slaughter, Democrat of New York, said in a statement explaining why she introduced the legislation last year. She was referring to the trips by Justices Scalia and Thomas to the events sponsored by Mr. Koch. But Tom Fitton, the president of Judicial Watch, a conservative legal group, said that liberal groups’ focus on the trips simply offered them an avenue to criticize conservative justices when they had done nothing wrong. “They are creating an ethics issue to try to put pressure on justices to get them to rule a certain way,” he said.

The disclosure reports show that the majority of the privately funded trips — by far — are sponsored by universities.

Richard L. Hasen, a professor of law and political science at the University of California, Irvine, said that society could benefit when justices — who are paid about $250,000 a year, far less than they would earn in private practice — leave Washington to speak about how the court works.

In a new study, Dr. Hasen also found justices have increasingly gained a celebrity status, with websites like SCOTUS Map tracking their trips. “Justice Sonia Sotomayor runs into Hillary Clinton at a Costco, and that makes national news,” he said. “Now they are celebrities, so we just hear about them more.”

Manny Fernandez contributed reporting from Houston, and Alain Delaquérière contributed research.

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Justice Scalia spent his last hours with members of exclusive, all-male secretive society


http://www.chicagotribune.com/news/nati ... story.html


By Amy Brittain and Sari Horwitz
The Washington Post

February 27, 2016, 2:28 PM



When Justice Antonin Scalia died at a West Texas ranch, he was among high-ranking members of an exclusive fraternity for hunters called the International Order of St. Hubertus, an Austrian society that dates to the 1600s.

After Scalia's death Feb. 13, the names of the 35 other guests at the remote resort, along with details about Scalia's connection to the hunters, have remained largely unknown. A review of public records shows that some of the men who were with Scalia at the ranch are connected through the International Order of St. Hubertus, whose members gathered at least once before at the same ranch for a celebratory weekend.


Members of the worldwide, male-only society wear dark green robes emblazoned with a large cross and the motto "Deum Diligite Animalia Diligentes," which means "Honoring God by honoring his creatures," according to the group's website. Some hold titles, such as grand master, prior and knight grand officer. The order's name is in honor of Hubert, the patron saint of hunters and fishermen.

Cibolo Creek Ranch owner John Poindexter and C. Allen Foster, a prominent Washington attorney who traveled to the ranch with Scalia by private plane, hold leadership positions within the order. It is unclear what, if any, official association Scalia had with the group.

"There is nothing I can add to your observation that among my many guests at Cibolo Creek Ranch over the years some members of the International Order of St. Hubertus have been numbered," wrote Poindexter in an email. "I am aware of no connection between that organization and Justice Scalia."

A lawyer for the Scalia family did not respond to requests for comment for this story.

Two other private planes that landed at the ranch for the weekend are linked to two men who have held leadership positions with the Texas chapter of the order, according to a review of state business filings and flight records from the airport.


After Scalia's death, Poindexter told reporters that he met Scalia at a "sports group" gathering in Washington. The U.S. chapter of the International Order of St. Hubertus lists a District of Columbia suite on M Street NW as its headquarters, although the address is only a mailbox in a UPS store.

The International Order of St. Hubertus, according to its website, is a "true knightly order in the historical tradition." In 1695, Count Franz Anton von Sporck founded the society in Bohemia, which is in modern-day Czech Republic.

The group's grand master is "His Imperial Highness Istvan von Habsburg-Lothringen, Archduke of Austria," according to the order's website. The next gathering for "Ordensbrothers" and guests is an "investiture" in Charleston, S.C., on March 10.

The society's U.S. chapter launched in 1966 at the famous Bohemian Club in San Francisco, which is associated with the all-male Bohemian Grove — one of the most notorious secret societies in the country.


In 2010, Poindexter hosted a group of 53 members of the Houston chapter of the International Order of St. Hubertus at the Cibolo Creek Ranch, according to a Houston society publication. A number of members from Mexico were also part of the ranch festivities that included "three days of organized shoots and 'gala' lunches and dinners."

Poindexter told CultureMap Houston that some of the guests dressed in "traditional European shooting attire for the boxed bird shoot competition" and for the shooting of pheasants and chukar, a type of partridge.

For the hunting weekend earlier this month, Poindexter told The Washington Post that Scalia traveled to Houston with his friend and U.S. marshals, who provide security for Supreme Court justices. The Post obtained a Presidio County sheriff's report that named Allen Foster as Scalia's close friend on the trip.

Sheriff Danny Dominguez confirmed that a photograph of Washington attorney C. Allen Foster is the same man he interviewed at the ranch the day of Scalia's death.

From Houston, Scalia and Foster chartered a plane without the marshals to the Cibolo Creek Ranch airstrip. In a statement after Scalia died, the U.S. Marshals Service said Scalia had declined a security detail while at the ranch.

The friend, Louisiana-born Foster, is an attorney with the Washington firm Whiteford, Taylor & Preston. He is also known for his passion for hunting and is a former spokesman for the hunting group, Safari Club.

In 2006, Foster was featured in the Post when he celebrated his 65th birthday with a six-day celebration in the Czech Republic. He flew his family and 40 Washington friends there to stay in Moravia's Castle Zidlochovice, a baroque castle and hunting park. The birthday bash included "tours of the Czech countryside, wine tasting, wild boar and mouflon (wild sheep) hunts, classic dance instruction and a masked costume ball."

A secretary at Foster's law firm said he is traveling in Argentina. The firm's director of marketing, Mindee L. Mosher, said Foster was traveling and she would try to contact him. A woman answering a phone associated with Foster hung up when asked for comment.

Planes owned by Wallace "Happy" Rogers III and the company of A.J. Lewis III left from San Antonio and arrived at the ranch just after noon Feb. 12. The planes departed the ranch about 30 minutes apart Feb. 14, according to flight records provided to the Post by FlightAware.

Rogers owns the Buckhorn Saloon and Museum in San Antonio. He has donated $65,000 to Republican candidates since 2008. Lewis is the owner of a restaurant supplier company, also based in San Antonio. He has given $3,500 to GOP candidates since 2007.

Rogers and Lewis have served as prior officers in the Texas chapter of the International Order of St. Hubertus, according to Texas business records. Rogers spoke to a Post reporter briefly on the phone and confirmed that he was at the ranch the weekend of Scalia's death. He declined to comment further.

Lewis did not respond to several attempts for comment.

The Presidio County sheriff released an incident report to the Post late Tuesday that revealed Foster's name as Scalia's traveling companion and provided details about the discovery of his body.

Poindexter and Foster told the sheriff that Scalia had traveled to Texas the day before to go hunting. Poindexter told the sheriff that they "had supper and talked for a while" that evening.

Scalia "said that he was tired and was going to his room for the night," the sheriff wrote in his report.

When Scalia didn't show up for breakfast that morning, Poindexter knocked on his door and eventually went in and found the justice dead in his bed, Poindexter said.


Law enforcement officials told the Post that they had no knowledge of the International Order of St. Hubertus or its connection to Poindexter and ranch guests. The officials said the FBI had declined to investigate Scalia's death when they were told by the marshals that he died from natural causes.

The Washington Post's Alice Crites contributed.

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http://www.chicagotribune.com/news/nati ... story.html

Why Justice Scalia was staying for free at a remote West Texas resort

Mark Berman, Jerry Markon
The Washington Post

February 17, 2016, 11:16 AM


Justice Antonin Scalia's sudden death over the weekend at a remote West Texas ranch spawned a host of questions about how authorities in the area responded.

It also raised questions about the nature of his travel, who paid for a Supreme Court justice to visit a remote resort and whether they are subject to the same disclosure guidelines as other judges or federal officials. Here is a guide to these questions.


Q. Where did Justice Scalia die?

Scalia was at the Cibolo Creek Ranch, a remote resort tucked away in the Big Bend region of Texas about 30 miles from the border with Mexico.

The ranch is 30,000-acre getaway that is home to John B. Poindexter, according to the website of J.B. Poindexter & Co. It is a remote location that has reportedly attracted the likes of Mick Jagger, Jerry Hall and Bruce Willis. When Tommy Lee Jones directed a movie more than a decade ago, he filmed several scenes at the ranch, according to the Houston Chronicle.

Q. Who paid for his trip?

All of which raises the question: Who pays for a Supreme Court justice to make this kind of trip?

Not Scalia, it turns out. Poindexter told The Washington Post that Scalia was not charged for his stay, something he described as a policy for all guests at the ranch.

"I did not pay for the Justice's trip to Cibolo Creek Ranch," Poindexter wrote in a brief email Tuesday. "He was an invited guest, along with a friend, just like 35 others."

Poindexter added: "The Justice was treated no differently by me, as no one was charged for activities, room and board, beverages, etc. That is a 22-year policy.''

However, Poindexter said he did not pay for Scalia's charter flight to Texas.

A person familiar with the ranch's operations said that Poindexter hosts such events two or three times a year.

Poindexter, who would not identify Scalia's friend, is a Texas native and decorated Vietnam veteran who owns Houston-based J.B. Poindexter & Co., a manufacturing firm.

The company has seven subsidiaries, with combined annual revenue of nearly $1 billion, according to information on its website. Among the items it manufacturers are delivery vans for UPS and FedEx and machine components for limousines and hearses. The company has 5,000 employees, the site said.

One of Poindexter's companies was involved in a case that made it to the high court. Last year, the Supreme Court declined to hear a case involving an age discrimination lawsuit filed against one of these companies, court records show.

The nature of Poindexter's relationship with Scalia remained unclear Tuesday, one of several lingering questions about his visit. It was not known whether Scalia had paid for his own ticket to fly to the ranch or if someone else picked up the tab, just as it was not immediately clear if Scalia had visited before.

It is also still not known who else was at the Texas ranch for the weekend, and unless that is revealed, there could be concerns about who could have tried to raise an issue around Scalia, said Stephen Gillers, who teaches legal and judicial ethics at the New York University School of Law. He compared it to unease that arises when judges and officials from major companies are invited to seminars or educational events that bring them together for periods of time.

"People worry at those kinds of things, there's a creation of access on the part of people with an interest in the courts, and that is unfair," Gillers said Tuesday.

Q. How do justices disclose their gifts and investments?

Much the same way other federal judges do: by filing reports outlining their outside income, gifts and times they are reimbursed for things.

The 1978 Ethics in Government Act, passed in the wake of the Watergate scandal, states that all federal judges -- up to and including the chief justice and the associate justices -- are required to report certain gifts. It also requires them to identify and describe when someone who is not a relative gives them "transportation, lodging, food, or entertainment" worth a certain amount.

A review of Scalia's recent financial disclosure reports posted online by OpenSecrets.org shows that, like his colleagues, he regularly filed for unspecified reimbursements from universities, legal societies and other organizations after making trips for lectures and speeches. Scalia was among the court's most active travelers. However, these disclosure forms offer scant details about who else attends events with the justices.

Chief Justice John G. Roberts Jr. devoted part of his 2011 report on the state of the federal judiciary to this topic of these disclosures. He also made sure to note that it was not entirely clear, in the court's eyes, whether Congress could even extend such requirements to the justices.

"The Court has never addressed whether Congress may impose those requirements on the Supreme Court," he wrote. "The Justices nevertheless comply with those provisions."

Q. Are there other ethical questions regarding justices?

The biggest ethical questions involve when justices should recuse themselves from cases, says Gillers.

"Is [the justice] the final arbiter of whether or not he has to recuse himself? And the answer is yes," he said. "Every other federal judge below the Supreme Court, every other federal judge's decision about whether or not he should be recused is potentially subject to the review of a higher judge or other judges on his court. But no one reviews the decision of a justice."

He pointed to perhaps the most famous case involving a justice and recusal, which involved Scalia himself.

Scalia joined then-Vice President Dick Cheney on a hunting trip while Cheney was the subject of a lawsuit over his energy task force, and in response to calls that he sit out the case, Scalia issued a highly unusual 21-page argument explaining why he refused to do so.

For his part, Roberts has defended the court's policy allowing justices to decide for themselves if they should step away from certain cases, defending the court's members as capable of making this decision themselves.


In his 2011 report, Roberts noted that while lower courts can substitute for one another, there is only one U.S. Supreme Court "and if a Justice withdraws from a case, the Court must sit without its full membership." The justices have "an obligation to the Court" before making the decision on recusal, he wrote.

Roberts issued his report at the end of a year that saw more than 100 law professors nationwide ask Congress to give the Supreme Court an ethical code of conduct after it emerged that Scalia and Justice Clarence Thomas had attended private political meetings sponsored by billionaire conservative donors David and Charles Koch. That same year, a watchdog group said that Thomas had failed to report his wife's income from a conservative think tank, and he amended his financial forms.


While Roberts did not specifically mention those issues, he said it would not be wise for justices to review the recusal decisions made by their peers, stating that "it would create an undesirable situation" involving justices getting to play a role in the final decision by deciding who could play a role.

"I have complete confidence in the capability of my colleagues to determine when recusal is warranted," he wrote. "They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process."


Copyright © 2016, Chicago Tribune

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P.S The next President will name as many as 4 Supreme Court Justices (Maybe now it's 3)

http://www.bostonherald.com/news/us_politics/2015/10/next_president_will_name_as_many_as_four_supreme_court_justices

http://www.cbsnews.com/news/the-next-pr ... eme-court/
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