Boles Holmes White Attorney Wally Walker Assists in Securing Affirmance of $40 Million Settlement for Plaintiff Class

Boles Holmes White Attorney Wally Walker Assists in Securing Affirmance of $40 Million Settlement for Plaintiff Class. March 15, 2022, the United States Court of Appeals for the Fourth Circuit affirmed the approval of an approximate $40 million class action settlement. Wally Walker, co-lead counsel, orally argued the case before the Fourth Circuit. The Fourth Circuit found that the lower court in Maryland did not abuse its discretion in approving the agreement reached between the policyholders and Banner Life Insurance and William Penn Insurance Companies. In affirming the district court’s approval of the settlement as fair to the class, it said: “[the] settlement was reached after an extensive motions practice, extensive discovery and investigation of Banner and William Penn policies by Plaintiffs’ counsel and multiple settlement discussions and negotiations.”

The Fourth Circuit stated that this case should be considered a poster child for deferential treatment. Therefore, afforded the District Court as it was “chock-full of the most esoteric principles of life insurance accounting imaginable.” The Court’s twenty-five page opinion clarified the standard in the Fourth Circuit for objections to class settlements as follows. For instance, objectors of the settlement must state and support their objection, and proponents must demonstrate that it is fair, reasonable, and adequate despite the objection.

Boles Holmes White’s Succeed

The named plaintiffs, represented by Walker and co-lead counsel Dee Miles, alleged the companies unfairly increased the cost of insurance charges on certain universal life insurance policies in 2015. In May 2019, Maryland Federal District Court Judge Richard D. Bennett approved the $38.2 million class-wide settlement between plaintiffs and Defendants Banner Life Insurance Co. and William Penn Life Insurance Co. Therefore, consisted of more than 10,750 universal life policyholders.

Boles Holmes White Attorney Wally Walker Assists in Securing Affirmance of $40 Million Settlement for Plaintiff Class Conclusion:

However, before the Maryland court could give final approval, one policyholder objected to the settlement – the 1988 Trust for Allen Children (Allen Trust). The Allen Trust argued that the settlement provides no compensation for damages it called “Deficit Account Harm.” The district court permitted the Allen Trust discovery to assist in determining whether the objection was meritorious. Furthermore, which the Fourth Circuit acknowledged was “an extremely unusual occurrence” but was within the district court’s discretion.

Walker and Miles, as Court-appointed co-lead counsel, represented the named plaintiffs and succeeded in arguing before the district court. Proving that the settlement was fair, reasonable, and adequate to all class members notwithstanding the lone objector’s arguments.

The case is 1988 Trust for Allen Children v. Banner Life Insurance Company, case number 20-1630, in the U.S. Court of Appeals for the Fourth Circuit.

March 30, 2022

Pharmaceuticals

Pharmaceuticals in Our Water: Part 2 – Section 2, Subpart A – Scientific Explanation of Pharmaceutical Discharge, Human Impact

Section 2: Scientific Explanation of Pharmaceutical Contamination

A. Human Impact

Most pharmaceuticals in the water occur in concentrations far below prescribed dosages. Nevertheless, micro-dose exposure to many drugs over a long period poses great human health risk.[8] Pharmaceuticals are designed to effect biological change, and thus these compounds pose a greater risk to human health than other anthropogenically- originating chemicals in the environment.[9] Additionally, human exposure to pharmaceuticals in water is not limited to the water humans consume. Exposure also occurs through the consumption of fish and shellfish that have bioaccumulated pharmaceuticals or have been in contact with contaminated water.[10] The most studied side effect of consuming pharmaceutically contaminated water is endocrine system disruption.[11]

Endocrine resistance occurs when drugs that mimic naturally occurring hormones or drugs that are exogenous forms of hormones produced in the body are consumed and cause the endocrine system to stop producing its own hormones.[12] Such endocrine disrupting affects can “include breast cancer and endometriosis in women, testicular and prostate cancers in men, abnormal sexual development, reduced male fertility, alteration in pituitary and thyroid gland functions, immune suppression and neurobehavioral effects.”[13] There is a direct relationship between the generational decline in men’s testosterone and luteinizing hormone levels and the amount of birth control prescribed for and consumed by women.[14]

Pharmaceuticals in the water also contribute to antimicrobial resistance, which occurs when microbes that adapt to antimicrobial agents reproduce and then pass on that resistance gene.[15] Such resistance poses serious public health risks, such as the need for\multiple rounds of antibiotics to kill bacteria or the inability to fight infections altogether.[16]

While antimicrobial resistance of the endocrine system and to antibiotics is an indisputable effect of consuming pharmaceutically contaminated water, some scientists argue that there are few other side effects to human consumption of such water.[17] This camp believes that new sewage treatment mechanisms are not necessary. But there is a large group of scientists who disagree. They argue that there have not been enough studies conducted and that presently there are inefficient means to detect the threats that long term, low dose consumption of many pharmaceuticals pose.[18]

Despite the lack of human studies, there have been many studies on how pharmaceutically contaminated water impacts individual human cells. In one study, scientists exposed healthy cells to a dosage of pharmaceuticals similar to that found in Italian rivers – the result was that cells grew a third as fast as they did prior to exposure.[19] Another study found that breast cancer cells exposed to estrogens taken fromfish that were caught near sewage plants grew twice as quickly as unexposed cells.[20] Other studies have found that individual drugs can cause cell growth, but when drugs that cause growth are combined with other drugs, growth can actually be slowed.[21] Such effects prove that pharmaceuticals have synergistic effects. Yet in the lab and in testing for humans, such effects are not studied because most drugs are not designed to be stacked with other compounds.[22]

[8] Kolpin, supra note 1.

[9] Halford, supra note 2.

[10] GLOBAL WATER RESEARCH COALITION, OCCURRENCE AND POTENTIAL FOR HUMAN HEALTH IMPACTS OF PHARMACEUTICALS IN THE WATER SYSTEM 2 (2009).

[11] Karyn Feiden, Pharmaceuticals Are in the Drinking Water: What Does It Mean?, Rapid Pub. Health Pol’y Response Project: Geo. Wash. Sch. of Pub. Health & Health Serv., 3 (April 2008)

[12] Thomas M. Crisp et al., Environmental Endocrine Disruption: An Effects Assessment and Analysis, 106 Envtl. Health Persp. 11, 11 (Supp. 1998).

[13] Tanya Tillett, Summit Focuses on Pharmaceuticals in Drinking Water, 117 Envtl. Health Persp. A16, A16 (2009).

[14] Id.

[15] Antimicrobial Resistance, World Health Org. (Mar. 2016), http:// www.who.int/ mediacentre/factsheets/fs194/en/.

[16] Christopher T. Nidel, Regulating the Fate of Pharmaceutical Drugs: A New Prescription for the Environment, 58 Food & Drug L.J. 81, 83-84 (2003).

[17] Halford, supra note ii.

[18] Id.

[19] How Meds in Water Could Impact Human Cells, MSNBC (Feb. 16, 2010), http:// www.msnbc.msn.com/id/23558785.

[20] Id.

[21] Id.

[22] Francisco Pomati et al., Effects and Interactions in an Environmentally Relevant Mixture of Pharmaceuticals, 102 Toxicology Sci. 129, 129 (2008).

October 12, 2019

Pharmaceuticals

Pharmaceuticals in Our Water: Part 1 – Introduction

Section 1: Introduction

Pharmaceuticals in our water. Pharmaceuticals are in our rivers, streams, lakes, oceans, and ground and soil waters. A U.S. Geological survey conducted from 1999-2000, found at least one of ninety-five organic wastewater contaminants, such as “antibiotics, other prescription drugs, non-prescription drugs, steroids [and] reproductive hormones” in eighty percent of the one-hundred and thirty-nine streams sampled.[1] A 2008 Associated Press investigation revealed “[a] vast array of pharmaceuticals including antibiotics, anti-convulsants, mood stabilizers and sex hormones […] in the drinking water supplies of at least 41 million Americans” in twenty-four major metropolitan areas.[2] In 2013[3], the U.S. Environmental Protection Agency found that there were at least twenty-five different active pharmaceutical ingredients in the water at fifty large wastewater treatment plants across the United States.[4]

Despite the pervasiveness of pharmaceuticals in our nation’s waters, authorities have taken little action to prevent further contamination or to address existing contamination. However, federal environmental statutes do not directly address the discharge of pharmaceuticals into water. As a result, most wastewater processes do not target pharmaceutical contaminants[5];nor could they due to lack of capacity and technology.[6] Therefore, many believe that regulating pharmaceutical discharge is a futile exercise. Christian Daughton of the EPA noted that “[g]iven the vast array of mechanisms of drug action and side effects. The total number of different toxicity tests possibly required to screen the effluent from a typical [sewage treatment plant] could be impractically large.”[7]

Furthermore, the discussion that follows includes a scientific explanation of the human and environmental impacts of pharmaceutical discharges and the sources of such discharges. (as Section 2); The current legislation that regulates pharmaceutical discharges (as section 3); the scientific solution to preventing pharmaceuticals from entering waters (as part of section 4); and a feasible legal remedy to pharmaceutical discharges (as part of section 4). Additionally, the discussion as a whole makes the case that unregulated pharmaceutical discharges present serious environmental and human health risks that demand statutory directive.

[1] Dana W. Kolpin et al., Pharmaceuticals, Hormones, and Other Organic Wastewater Contaminants in U.S. Streams, 1999–2000: A National Reconnaissance, 35 ENVTL. SCI. & TECH. 1202, 1203 (2002).

[2] WORLD HEALTH ORG., PHARMACEUTICALS IN DRINKING WATER 15 (2012); Jeff Donn et al., Pharmawater I: Pharmaceuticals Found in Drinking Water, Affecting Wildlife and Maybe Humans, ASSOCIATED PRESS (Mar. 9, 2008), http://hosted.ap.org/ specials/interactives/pharmawater_site/day1_01.html; Matt Harvey, Your Tap Water Is Probably Laced with Antidepressants, SALON (Mar. 14, 2013), http://www.salon.com/ 2013/03/14/your_tap_water_is_probably_laced_with_anti_depressants_partner/; David Noble, Trouble at the Tap, WATER QUALITY PRODUCTS.

[3] That year Americans filled nearly four billion prescriptions.

[4] M.S. Kostich et al., Concentrations of Prioritized Pharmaceuticals in Effluents from 50 Large Wastewater Treatment Plants in the U.S. and Implications for Risk Estimation, 184 ENVTL. POLLUTION 354 (2014)

[5] See Staffan Castensson, Pharmaceutical Waste, in PHARMACEUTICALS IN THE ENVIRONMENT: SOURCES, FATE, EFFECTS AND RISK 489, 497 (Klaus Kümmerer ed., 2008) (“Pharmaceuticals are designed to be resistant to biological degredation”)

[6] Id.

[7] Christian G. Daughton & Thomas A. Ternes, Pharmaceuticals and Personal Care Products in the Environment: Agents of Subtle Change?, 107 ENVTL. HEALTH PERSP. 907, 908 (1999).

September 30, 2019

White Collar Crime

Section 1 – Trusts, restraint of trade

The first section of the Sherman Antitrust Act targets specific business conduct that is anticompetitive by nature. The text of the first provision reads:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.

Trusts – from this statutory language the courts have derived three essential elements to a violation of the first provision of the Sherman Act. The first and arguably most important element of such a violation is the existence of an agreement. This is to say a business cannot violate the first provision of the Act on its own. They must have a partner agree to participate in the anticompetitive activity. In the case of a conspiracy, the existence of an agreement can be hard to prove. Conspiracies are by definition secretive, and are often hard to detect.

Usually the existence of such an agreement must be inferred from the surrounding evidence. Although there must be alleged facts sufficient to make the existence of a conspiracy not only conceivable but plausible. The agreement element represents the actual collusion among businesses. This is prohibited because of its unwanted anticompetitive effect on major markets. The agreement requirement also puts some forms of anticompetitive conduct (such as price discrimination) beyond reach of the statute, since it takes at least two to form an agreement.

The second element of the first section of the Sherman Antitrust Act is that the agreement unreasonably restrains competition. The term “unreasonably” is crucial to interpretation of the statute, since it gives courts wide discretion in its interpretation and purports to draw the line between legal business conduct and illegal collusion. Since all monopolies are not inherently illegal, courts must consider whether a given monopoly came about as a result of a legitimately successful business plan or as a result of collusive or anticompetitive behavior.Sherman Antitrust Act

Courts begin to examine whether a restraint on competition is unreasonably caused by a collusive agreement. They are engaging in applying what is known as the “rule of reason.” The “rule of reason” is an interpretive policy that recognizes that mere possession of a monopoly is not illegal, unless the monopoly is the result of an unreasonable acquisition or maintenance of the monopoly. The “rule of reason stands in contrast to the per se rule, which automatically deems some activity to come within the purview of the statute. For example, price fixing, bid rigging, and market allocation schemes are both per se violations of section one. However, a judge will entertain arguments and personally interpret the statute if a monopoly has been acquired in a way that could be construed as an unreasonable restraint on competition.

The third element of a violation of the first section of the Sherman Act is that the activity affects interstate commerce. That is to say that purely local activity should be left to regulation by state and local authorities. However, elements like these have rarely been a problem for prosecutors. That can usually demonstrate a sufficient out-of-state ripple effect of almost any anticompetitive activity a business engages in. This was originally passed by Congress under their Constitutional enumerated power to regulate interstate commerce. The justification for the federal legislation is that anticompetitive conduct is harmful to interstate commerce. The third element of a violation of section one reaffirms the source of their authority.

In sum, under the Sherman Antitrust Act, in order to show a violation, the prosecution must prove three elements beyond a reasonable doubt. The government must show the existence of an agreement, which unreasonably restrains competition, and affects interstate commerce. Price fixing schemes, bid rigging schemes, and market allocation schemes are all per se violations of the Act. For instance, can be prosecuted under the first section.

September 15, 2019

Criminal Defense

3 Questions To Ask: How To Hire The Right Attorney For YOUR Case

3 questions to ask: How to hire the right attorney for your case. If you are the suspect in a criminal investigation, you probably want to find the best attorney you can afford. But how do you do that?

First, you have to narrow down the attorneys that you want to interview. There are thousands of criminal defense attorneys, and you simply don’t have time to meet with all of them. Narrow your list down to just a few law firms. You do this by asking your family or friends who they recommend, asking an attorney you may know for a recommendation, or by researching criminal attorneys online. Once you have narrowed your list to around 3 firms that interest you, begin scheduling face to face meetings. Take the time to meet with the attorney. Show them that the case is important enough to you for you to take time to meet. Most attorneys will meet with you at little or no charge, but ask if there is any fee when you schedule the appointment, just to be sure.

Once you have a chance to meet with the attorney, we believe there are three primary questions you should ask any law firm prior to making a hiring decision.

1. Has your firm ever handled this type of case?

People are often most familiar with the personal injury attorneys that advertise on TV and have large billboards. While they may be good at what they do, most of them don’t practice criminal defense law, and probably wouldn’t represent you even if you wanted them to. Just because the attorney has a law degree, doesn’t mean they have experience in your specific type of case. You may like being a guinea pig, but we doubt it. All things being equal, who in their right mind wants to be an attorney’s first case if their freedom is on the line? No one.

2. Has your firm ever been successful with this type of case?

Just because a law firm has handled the same type of case, doesn’t mean they know what they are doing. The next question you want to ask is whether that law firm ever SUCCESSFULLY handled this type of case. If they say they have, ask for examples. They usually are allowed to provide the names of cases, as long as those are public record. However, due to rules regarding the attorney-client privilege they may not be able to give you specific names of former clients they have assisted with similar cases that weren’t public, but they should be able to give you examples of cases, without disclosing names. If they have handled 10,000 of this type of case and lost every one, you may want to look for a different law firm.

While you want someone that has experience and has been successful, be careful of any attorney that makes you a GUARANTEE that they will win your case. It is unethical to make such guarantee, and no attorney can accurately predict what a jury will do 18 months down the road. Any attorney that makes such a guarantee is just trying to close the sale and get you to pay them.

3. How much will your services cost?

Only after you have determined that the law firm you are talking with has experience in successfully handling your type of case should you consider paying them any money. Also, you may discover that you simply cannot afford their services.

Ask for a retainer agreement. Most reputable law firms will present you with a client contract or retainer agreement which details the terms of representation. If they don’t do this, you should ask them to put in writing how much they are charging you and what this payment covers.
For instance, Alabama law allows attorneys to represent clients for a limited purpose, such as a bond hearing or preliminary hearing. You want to make sure that if you are hiring the attorney to take the case all the way to trial, that they can’t later say they need more money.

You should only hire that attorney if you truly believe you will be able to afford them. It is not a good idea to have an attorney representing you on such a serious matter, while you are failing to pay them for their services. Eventually, that attorney will try to withdraw from your case. Too often we see clients pay money for an attorney, that they later cannot afford, and they have to start over after paying thousands of dollars to another attorney. In some cases, they are left with the public defender.

In closing, make sure you hire the most experienced and successful law firm you can afford for your specific case. The right attorney can make all the difference in the results.

September 1, 2018

Civil Suits

NAP policy claims lead to federal scrutiny of Wiregrass farmers

NAP policy claims lead to federal scrutiny of Wiregrass farmers. A federal spotlight has been placed on the Wiregrass area due to farmer’s filing an unusually high number of claims for a little known federal assistance program. The program in question is called the “Noninsured Crop Disaster Assistance Program”, or the “NAP program” for short.

This is a federal program administered by the Farm Service Agency (FSA). Therefore, provides protection from natural disasters for farmer’s growing crops for which crop insurance is unavailable.

A local Wiregrass employee of the FSA has been indicted in federal court for filing fraudulent NAP claims. Although, speculation is that other farmers in the area may also be under investigation.

In the Houston County area, private crop insurance is generally available for commodities such as peanuts and cotton, while farmers cannot obtain insurance on produce crops such as watermelons and squash. As a result, many farmers cannot obtain the financing they need to purchase supplies necessary to plant the high risk crops. This is where NAP protection becomes available for commercial farmer’s.

“Eligible Producers” can apply for this NAP insurance from the federal government, which provides protection up to approximately $125,000 in the event of total crop loss due to a natural disaster, such as flooding or drought.

The question many have been asking is exactly what is an “eligible producer”? The program specifies that to be considered an “eligible producer” for NAP protection you must be an owner, landlord, tenant, or sharecropper who shares in the risk of producing the crop. Moreover, is eligible to share in the crop available for marketing from the farm or would have shared had the crop been produced. Exactly who this definition covers is arguably open to interpretation. Although, will likely be the focus of some high stakes litigation in Alabama’s federal courts.

Because of the unusual weather conditions that took place during 2016 and 2017. Which included extended periods of draught and extreme rain, many produce crops failed and were eligible for NAP coverage. This led to an increase in NAP claims in and around the Dothan area. Leading to FSA having the prospect of huge federal payouts. While some farmers may have committed fraud by filing NAP claims under ineligible circumstances. The fear is that innocent farmers and lenders may be swept up into the investigation due to the government’s desire to avoid paying the large number of NAP claims.

If you are involved in a NAP claim in any way, whether you are a farmer, land owner, sharecropper, or lender, and have any questions, feel free to call our offices to discuss your situation. If you are approached by an investigator, we recommend you seek our assistance. Furthermore, assistance of another qualified federal criminal attorney with a working knowledge of the NAP program.

May 29, 2018

Civil Suits

Pharmacy Negligence

Pharmacy Negligence? Someone who does not feel well books an appointment with a doctor. During the exam, a doctor diagnoses the patient and prescribes him some medication. The patient takes a doctor’s prescription to the pharmacy, where the pharmacist verifies the patient’s condition and medical history and fills the correct prescription. The patient returns home and takes the medicine for the prescribed time period, and the medication helps the patient recover.

That is how it is supposed to go, but what if, instead, the pharmacy commits a serious mistake and injures the patient? When this happens, multiple parties may be liable for the injury.

Duties of the Pharmacy

Doctors are tasked with understanding medications and prescribing the proper type and dose. A pharmacy is tasked with dispensing medicine according to the prescription. Medicine in correct quantities can be healing, but that same medicine in larger quantities can be harmful. If the pharmacy provides the patient with an incorrect dosage that harms a patient, the pharmacy can be liable for negligence. Alabama tort law imposes a duty of care on the pharmacy that it must act under a reasonable standard of care.

Dispensing incorrect dosages to patients is a breach of that duty of care. Similarly, the pharmacy had a duty of care to only purchase and obtain drugs that are safe. If the pharmacy’s supplier is not following regulatory standards and the pharmacy knowingly or negligently disregards this issue, then the pharmacy breached its duty of care. In such a situation, the pharmacy can be liable for negligently dispensing deficient drugs.

Doctor’s Orders

Liability may be relevant even if the pharmacy follows doctor’s orders. A pharmacist’s duty is to analyze a patient’s reactions to medication even though the doctor prescribed the medication. The pharmacy has a duty not to dispense medication if it believes the patient will have a bad reaction. Regardless of the doctor’s prescription. A pharmacist is responsible for evaluating the prescription as well as all other medications the patient is prescribed and determining whether it is safe. If the medications interact negatively, the pharmacist is obligated not to dispense the prescribed medicine. Thus, if the pharmacist negligently disregards patient risk by dispensing medicine. As a result, the patient suffers injury, the patient is a victim of pharmacy malpractice.

The Law of Agency

If you suffered a pharmacy-related injury, the law of agency may allow you to collect from different parties. The pharmacy can be liable for the pharmacist’s negligence because the pharmacist acts as an agent for the pharmacy. The same is applicable for the pharmacy technician or anyone else involved in dispensing the medicine. The law of agency imputes liability from an individual to an entity, which can be from the pharmacist to the pharmacy. By the same token, if the pharmacy’s delivery man is negligent by leaving the medicine in the hot sun, for example, and that results in tainted medicine, then the pharmacy would be responsible for negligence, as well.

If you are the victim of pharmacy malpractice, contact the law firm of Boles Holmes White, Alabama plaintiff attorneys.

April 18, 2018

DUI

What to Expect at a New Years Eve DUI Checkpoint

What to Expect at a New Years Eve DUI Checkpoint. It is that time of year again where motorists will be ringing in the new year. This usually consists of good food, music, and the occasional alcoholic beverage. It is this time of year where law enforcement takes a more aggressive stance on DUI enforcement. Checkpoints are one manner by which law enforcement handles the enforcement of DUIs. Below you will find what you can expect during a DUI checkpoint.

When an officer first makes contact with a motorist who is stopped at a DUI checkpoint, the officer will be looking for physical manifestations of intoxication. These manifestations include slurred speech, glassy/bloodshot eyes, an odor of alcoholic beverage, inability to follow instructions or any other signs the officer deems a symptom of intoxication. One of the major other signs the officer will be looking for is whether the motorist is being belligerent or combative.

One of the simplest ways to avoid an issue at a DUI checkpoint is to be polite. A motorist who is polite and cooperative will be passed through much sooner than one who is uncooperative and belligerent. Remember though being cooperative is not the same thing as waiving your constitutionally protected rights. You have the right to refuse field sobriety tests as well as any breath alcohol tests.

If an officer suspects you are guilty of DUI, the next step after observation will involve the above mentioned tests. Officers will request that you submit to field sobriety tests. These tests include the Horizontal Gaze Nystagmus Test, the Walk and Turn Test and the One-leg Stand Test. You have the right to refuse any of these tests. If you refuse these tests or even if you comply with these tests, the officer is the sole decider about who is or is not intoxicated.

The final stage of a DUI checkpoint will consist of a breath alcohol test. This test will calculate a motorists breath alcohol content. In Alabama, this test will likely be the Draegar Alcotest 7110. Prior to providing a breath test, a motorist will be advised their license will be suspended if they fail to provide a breath sample. Although the officer will make it sound as if a motorist has to provide a breath sample, motorists do not. Motorists can always refuse the tests

If for some reason you or someone you know is stopped and arrested for DUI, please call our attorneys at Boles Holmes White and allow us to assist you in the defense of your DUI charge.

December 29, 2014

Criminal Defense

Criminal Attorneys watching for Alabama wiretaps

Criminal Attorneys watching for Alabama wiretaps. Alabama Attorney General Luther Strange has introduced legislation in the 2014 Alabama Legislative Session. Proposing law enforcement within the State be given authority to intercept telephone or other forms of communication for investigative purposes against criminal targets.

Since 1968, Federal Authorities have operated under the Federal Wiretap Act. Therefore, to obtain what are called Title III wiretaps on criminal suspects. Other states have followed suit over the years, however Alabama investigators still lack this power.

The Alabama criminal attorneys at Boles Holmes White have a lot of experience handling Federal cases involving wiretaps. Moreover, have actually used what the authorities called “incriminating wiretaps” to exonerate our clients on multiple occasions. This is why we are not automatically opposed to wiretap expansion within the State of Alabama.

However, after seeing what we consider abuse of the Federal Wiretap Act by federal authorities and Courts, we feel any expansion in Alabama should be explicitly limited to the original provisions contained within the Federal Wiretap Act.

First, no wiretap should be allowed unless it is authorized by a judicially approved warrant. The judge should not approve this warrant unless it is supported by probable cause. In addition, the officer requesting the warrant shows that normal investigative procedures have been exhausted and have failed.

The Federal Wiretap Act has a requirement that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” While this may sound like a reasonable standard, we have seen this standard erode to be meaningless. Federal Courts have consistently held that this does not require ALL other techniques be exhausted. Only that SOME other investigation has been fruitless.

Similarly, the federal law requires law enforcement to “screen” calls and only listen to calls that are “pertinent” to their investigation. This means that are to “minimize” (or not listen to) calls that are “non-pertinent”. This requirement is universally abused by law enforcement. Federal criminal attorneys regularly see intercepted telephone calls with children, spouses, and even privileged calls with attorneys.

In our experience, federal courts almost never enforce the exclusionary rule under the Fourth Amendment to the United States Constitution to toss out wiretaps that have clearly violated the necessity or minimization requirements. National statistics show that less than one thousandth of one percent of wiretaps are either denied or suppressed by Federal Courts for failure to follow the correct procedures, despite clear failure in many cases.

Therefore, to protect the rights of the citizens of Alabama. While also giving Alabama law enforcement the same crime fighting tools enjoyed by their federal counterparts. Our Alabama criminal attorneys support expanding wiretap legislation into Alabama under two strict requirements: 1. Absolute necessity (law enforcement showing the judge that ALL other methods have been completely EXHAUSTED); and 2. Strict enforcement of the minimization standards requiring law enforcement to refrain from wiretapping “non-pertinent” or privileged communications. If both of these requirements are not strictly followed, then the Alabama Courts should be required by statute to suppress all wiretaps obtained in the investigation. After that, should not be given the leeway to expand the power as has been done in the federal system.

January 20, 2014

Family Law

New Alabama law raises questions about child support payments for college

New Alabama law raises questions about child support payments for college. As covered in previous articles by the Birmingham divorce attorneys at Boles Holmes White, the Alabama Supreme Court recently issued a landmark decision in Christopher v. Christopher. Which overturned a well-established 24 year old legal precedent within Alabama. Prior to the opinion in Christopher, which was released on October 4, 2013, non-custodial parents in Alabama could be ordered by a divorce judge to pay post minority support for a child in the form of college tuition and costs. This now defunct law came into effect with the Alabama Supreme Court case of Bayliss in 1989. Therefore, had become black letter law for every Alabama divorce attorney from Birmingham to Dothan and Huntsville to Mobile.

With the ruling in Christopher, Bayliss has now be expressly overturned. Meaning a parent can no longer be forced by a divorce court to pay for a child’s college education as part of child support.

But what happens if two parents enter an agreement whereby, one parent is willing to pay for the children’s college tuition as part of a negotiated settlement. While this will become less common in Alabama after the Christopher decision. It is foreseeable that such an agreement could be reached where one parent agrees to such a payment. However, in exchange for some other concession by the other party. Such a concession could be the waiver of alimony or agreement to a smaller property settlement than the custodial parent was originally seeking. It is also conceivable that the parents’ values are such that they both want to ensure their children obtain a college education. Although, want that agreed upon in advance in the divorce decree.

It is likely that payment of college tuition could still be negotiated into a divorce settlement. However, enforced by a Court, if both parties agreed to the terms at the time of settlement.

What could be interesting is how the divorce courts of Alabama deal with such voluntary agreements, and the breach of those agreements. After the ratification of such an agreement by the divorce court, could the non-custodial parent simply change their mind and decide not to pay for college as agreed? If not, what are the divorce court’s remedies for the breach of the agreement to pay college tuition and costs? Can they enter a contempt order, or a money judgment against the non-paying party?

What if the parent had encountered a significant material change in circumstances from the time of the agreement when perhaps the children were very young, until a decade later when they enter college? Would such a material change in circumstances allow the parent to negate their previous agreement? Would they still be on the hook regardless? These, and other questions, will likely have to be settled on a case-by-case process. For instance, through the judicial system over the next several years.

If you have a question about a divorce, child support, or payment of college tuition in a divorce setting, call the Birmingham divorce attorneys at the Birmingham legal team of Boles Holmes White for assistance with your family law question.

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November 26, 2013

Tag Archive for: Settlement