APPELLATE VICTORY AGAINST MERCEDES BENZ USA

On behalf of its client, Azubueze Jiagbogu, Norman Taylor & Associates won a decisive victory against Mercedes Benz USA on issues relating to offsets claimed by manufacturers for years in computing how much a consumer was entitled to in a lemon law case. In addition, the court of appeal put to rest an old defense practice of creating confusion for juries in determining whether a consumer's vehicle qualified for a refund or replacement under the law.

The Second Appellate District Division Four issued a unanimous decision authored by Justice Epstein on three critical areas:

1. Can continued use of a motor vehicle constitute a waiver of the consumer's rights under the Act [Song Beverly Consumer Warranty Act]?

The Court of Appeal said, NO.

If manufacturers had prevailed in this, consumers after requesting relief under the act would have to park their vehicle and walk to work, take buses or taxis, or borrow a vehicle from a friend or relative. Knowledge of the law is not required to see the absolute absurdity of this.

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May manufacturers get an equitable offset for use of the defective motor vehicle requesting relief under the act?

The Court of said, NO.

The Act is very clear regarding mileage offset for use before the vehicle is bought back. It is calculated per a well-defined formula and includes only the mileage up to the first time that the vehicle is presented to the manufacturer or its repair facility for a defect for which the vehicle is being rejected. Thus if the vehicle manifested the defect at 3500 miles, the offset may only be calculated with that number. If the court had accepted the defense's argument, all mileage from 0 to 100,000 miles or more could be offset. The effect could be that the vehicle manufacturers would end up paying the consumer nothing at all, or very little. From this it is easy to see where this foolishness originated.

Can a manufacturer get the presumption instruction when the instruction is unavailable to the plaintiff?

The Court of Appeal said, NO.

This little bit of obfuscatory nonsense is quite subtle. The presumption states the following:

A consumer in a lemon law case must prove that the manufacturer was given a reasonable number of attempts to repair the vehicle. In California, for example, there are several ways for consumers to establish the presumption that the manufacturer had a reasonable number of repair attempts. The presumption is established if any of the following occurs within the first 18 months or 18,000 miles:

· The same defect is subject to repair four or more times; or

· The same defect is subject to repair two or more times, and is a serious safety defect that is likely to cause death or bodily injury; or

· The vehicle is out of service for repairs for a cumulative total of more than 30 days, for any combination of defects.

Thus, if a California consumer proves that a vehicle has been subject to repair four times for the same problem within 18 months or 18,000 miles, then the judge will tell the jury that the consumer has met his burden of proving that the manufacturer had a reasonable number of repair attempts.

So far, so good: but what if the consumer had two repairs before 18 months or 18,000 miles and 7 after? The presumption does not apply, however nothing in the lemon law suggests that therefore the vehicle is not a lemon. If however, the manufacturer's attorneys could get the Judge to include the presumption language included in the jury instructions, the last thing the jury would hear is 18 months and 18,000 miles, and this, coupled with the two repair attempts, would mean that a perfectly legitimate lemon law case could be unfairly lost for the vehicle owner. The Appellate Court understood this and rightly ruled against.

(Source: normantaylor)

ECJ blurs news-PR line in landmark case

Those that write about food supplements that in some countries are classified as pharmaceuticals risk having their missives interpreted as illegal marketing materials, according to a European Court of Justice (ECJ) ruling.

The ECJ found any information that promotes unauthorised medicinal claims can be construed as product marketing, after a Danish journalist, Frede Damgaard, was found to have illegally disseminated information about a banned rosehip powder-based, multi-benefit product called Hyben Total.

Blogger beware

The ruling could apply to independent articles written by journalists as well as content provided on online social networks and product review sites by the likes of consumers, bloggers and twitterers, said defence counsel in the case, Susie S. Ekstrand, of the Danish law firm, Lett.

“This ruling is significant because it means anything written about a product that maybe deemed medicinal in one member state, can be deemed inappropriate and consequences may follow for the author,” Ekstrand told NutraIngredients.com this morning.

“We were surprised by this ruling because we thought a commercial interest in the product in question would have to be demonstrated, but the ECJ has ruled otherwise,” she added. “It is a restriction of freedom of speech and journalists need to be careful now, especially those writing online across many member states.”

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She made an example of a journalist writing about the joint benefits of glucosamine, which is classed as a drug in Denmark. Since such claims are forbidden in Denmark, a writer in that situation could find herself in legal hot water.

The verdict

The ECJ placed great emphasis on public health and noted that freedom of expression rights written in 1950 into the European Convention for the Protection of Human Rights and Fundamental Freedoms, was subject to “certain limitations justified by objectives in the public interest”.

It therefore found that statements about products could be construed as advertising under the 2001 Medicines Directive “even though the third party in question is acting on his own initiative and completely independently, de jure and de facto, of the manufacturer and the seller of such a medicinal product.”


The European Union’s highest court said it was for member state jurisdictions to interpret its ruling which agreed with an earlier Danish court ruling against Damgaard, which saw the freelance journalist fined about €1500.

(Source: NutraIngredient)

Environmental groups and ‘cool cities’ force U.S. financing agencies to take action on climate

United States — A federal lawsuit that sought to force two U.S. agencies to address the global warming implications of their overseas financing activities was settled today after more than six years; the suit established important legal precedents related to global warming.

Friends of the Earth, Greenpeace and the city of Boulder, Colorado, filed the suit (Friends of the Earth, Inc., et al. v. Spinelli, et al.) in August 2002 and were later joined by the California cities of Arcata, Santa Monica and Oakland. The plaintiffs alleged that Export-Import Bank of the United States and the Overseas Private Investment Corporation illegally provided more than $32 billion in financing and insurance to fossil fuel projects over 10 years without assessing whether the projects contributed to global warming or impacted the U.S. environment, as they were required to do under the National Environmental Policy Act (NEPA). Fossil fuel projects financed by the two agencies from 1990 to 2003 produced cumulative emissions that were equivalent to nearly eight percent of the world’s annual carbon dioxide emissions, or nearly one third of annual U.S. emissions in 2003.

In August 2005, a federal judge found that the U.S. cities suffering economic and other damages from climate change had standing to sue under NEPA, opening up the courthouse doors for the first time to those injured by climate change. Testimony from the case, which successfully asserted that climate change is real and caused by human activities, later informed the Mass. v EPA decision, in which the Supreme Court held that carbon dioxide and other greenhouse gases are pollutants that can be regulated under the Clean Air Act.

Under the settlement agreed to today, the Export-Import Bank will begin taking carbon dioxide emissions into account in evaluating fossil fuel projects and create an organization-wide carbon policy. The Overseas Private Investment Corporation will establish a goal of reducing greenhouse gas emissions associated with projects by 20 percent over the next ten years. Both agencies will commit to increasing financing for renewable energy.

The settlement represents an important victory in the continuing campaign to hold both agencies accountable for their contributions to climate change. The settlement agreement was filed in the U.S. District Court for the Northern District of California.

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Reactions from the plaintiffs:

“This settlement is a substantial victory for our climate. It will force federal agencies to move away from fossil fuel projects and account for the climate impacts of their lending. As President Obama said in his inaugural address, 'We can no longer consume the world’s resources without regard to effect.' The settlement agreed to today is a first step toward making Obama's vision a reality for these institutions.”
— Michelle Chan, Senior Policy Analyst, Friends of the Earth

“When we launched this lawsuit in 2002, we were deep in the Bush global warming dark ages. We were able to prove that climate change harms American cities and citizens and we forced these agencies to change their behavior. Now that we have entered the brighter Obama age, Greenpeace hopes that sweeping reform of global warming policy will reach every corner of the government.”
— Kert Davies, Research Director, Greenpeace

“This case was one of the very first climate change lawsuits and established the framework for other climate change cases. The claims here are no longer considered novel. The settlement reached today will help ensure that the federal government takes a close look at its contributions to climate change and that the courts are available if the government fails in this critical obligation.”
— Ron Shems, lead council for the plaintiffs

(Source: greenpeace)

India: Landmark Judgment on Gay Rights

The Delhi High Court judgment in the Naz Foundation case is a landmark verdict which decriminalizes homosexuality and strikes a blow in favour of personal freedom on the solid foundations of inclusiveness and respect for diversity. It deserves to be welcomed by all those who value constitutional morality and the principles of personal privacy and human dignity. It “reads down” Section 377 of the Indian Penal Code—which treats “carnal intercourse against the order of nature” as a punishable offence—by confining its application to non-consensual penile non-vaginal intercourse and paedophilia.

One doesn’t have to be even remotely inclined to a particular sexual orientation or a belief system other than tolerance to appreciate the scope and logic of this judgment by Justices A.P. Shah and S. Muralidhar. It conceptualizes freedom expansively within an uncompromisingly modernist perspective and offers a social vision that genuinely respects difference and diversity and does not discriminate against any citizen on grounds of religion, race, caste, sex or place of birth (Article 15 of the Constitution).

The verdict doesn’t merely uphold the rights of the lesbian, gay, bisexual and transgender (LGBT) communities. It enriches the understanding of discrimination, prejudice and social exclusion, and imparts new meanings to the concepts of inclusiveness, liberty and human dignity. It speaks to all citizens.

It’s dismaying therefore that relatively few social and political organisations have extended support to the judgment and committed themselves to amending Section 377 of the IPC. Religious groupings across the spectrum have expectedly opposed it. Less expectedly, no political party, barring the Communist Party of India-Marxist and the Nationalist Congress, has welcomed it, and that too with caution. The Congress is badly divided on the issue. The Hindu Right fiercely opposes the verdict.

Yet, there are compelling reasons to break the social taboo against non-heterosexual orientations. It bears recalling that Section 377 is a colonial legacy enacted in 1860 by Lord Macaulay, who was as deeply rooted in Victorian morality as he was devoted to the British Empire. It followed a larger agenda which Macaulay himself defined in 1825:
. . . I propose that we replace [India’s] old and ancient education system, her culture, for if the Indians think that all that is foreign and English is good and greater than their own, they will lose their self-esteem, their native culture and . . . become what we want them, a truly dominated
nation . . .



The judgment’s central rationale lies in the extension of the definition of sex to include not just gender, but a person’s sexual orientation, as a ground for discrimination, exclusion and punishment, and its elaboration of the right to life under Article 21 as including the right to a dignified existence and privacy, and the inviolable liberties guaranteed by Article 19.

All these fundamental rights, including the right to equal treatment and non-discrimination (Articles 14 and 15), it cogently argues, are violated by Section 377, which involves “unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits”, quoting a Canadian judgment.

Human dignity means that an individual or group feels self-respect and self-worth [and concerns]. . . physical and psychological integrity…Human dignity is harmed when individuals and groups are marginalised, ignored or devalued.

This is precisely what Section 377 does.

Section 377’s basis lies not in science or rationality, but in hopelessly archaic notions of “deviant sexual behaviour”. The judgment reviews the current scientific and professional literature on the issue and notes that according to psychologists, “the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence”. These patterns of sexual attraction generally arise without any prior sexual experience.

Thus, homosexuality is not a disease or mental illness that needs to be, or can be, ‘cured’ or ‘altered’, it is just another expression of human sexuality.

The judgment makes an impressive survey of contemporary jurisprudence, including verdicts from different countries, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity, formulated in 2007 by experts from 25 countries, including a former UN High Commissioner for Human Rights, numerous judges, academics and activists.

These principles recognise that “human beings of all sexual orientation and gender identities are entitled to the full enjoyment of all human rights”. All have the right to privacy. Every citizen has a right to take part in the conduct of public affairs including the right to stand for elected office, participate in the formulation of policies affecting their welfare, with equal access to all levels of public service and employment without discrimination.

Says the judgment:

The constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.

Equally illuminating is the verdict’s discussion of the right to privacy, or a “space in which man may become and remain himself”. The right to be let alone doesn’t derive from efforts to protect other interests.

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It should be seen not simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, your personality and make fundamental decisions about your intimate relations without penalisation.

We all have a right to a sphere of private intimacy and autonomy and to nurture human relationships without interference from outside.

The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy.

The only limitation is that this must be done without using coercion or harming others.

The judgment persuasively shows that religious faith, tradition or customs cannot be an argument for restricting liberty, including sexual freedom. Underlying this argument, quoting a South African judicial committee, is revulsion against what is regarded as unnatural, sinful or disgusting. Many people feel this revulsion. . . But moral conviction or instinctive feeling, however strong, is not a valid basis for overriding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behaviour .

(Source:sacw)