It is with great pride that we announce to you the election of the Senior Editorial Staff of Volume 69 of the Syracuse Law Review! The new staff will be fully transitioned into their new positions by June 1, 2018. Please join us in congratulating this fantastic group of students!
Written by Stefani B. Joslin
From 1993 to 2003, actor Chuck Norris starred in the hit television series, Walker, Texas Ranger (“Walker”). When the show began in 1993, Norris entered into a contract with CBS and SONY Pictures over how he and his company, Top Kick Productions (“Top Kick”), would receive profits from the show.
Recently, Norris claimed he has not received the profits that were promised to him not under the agreement. Through Top Kick, he filed suit on January 31st in the Los Angeles Superior Court against CBS and SONY for $30 million, alleging breach of contract and breach of the implied covenant of good faith and fair dealing.
CBS and SONY had contractually agreed to pay Norris, through Top Kick, 23% of the revenue from the show. This agreement also prevented CBS from deducting revenue costs that were unrelated to the production of Walker.
The 23% clause was meant to be stable over time and have similar longevity. A layout of how profit would be calculated through the showing of the program, for instance on television or DVDs, was also set out in the contract. CBS and SONY were obligated to accurately report revenue, as well as other expenses related to Walker, in order for Top Kick to be paid the proper profit percentage. All third party agreements were also to be accounted for and shown to Norris and Top Kick.
Norris’ complaint states three causes of action: (1) breach of contract against CBS; (2) breach of the implied covenant and good faith and fair dealings against both companies; and (3) accounting against both companies.
Norris claims CBS and SONY have materially breached the contract by consciously seeking to market and sell Walker in a way that still collects revenue but does not pay Norris or Top Kick. The companies have allegedly used fees and revenues, through the continuous exploitation of Walker, to materially breach the agreement, failing to pay the profits owed to Norris.
According to Norris, Walker’s success is due to his work and popular image. In direct response to that, Norris alleges CBS used his “imagery” of being a social icon and movie star as the distributor of the Walker series on television and video. “CBS was among the networks that were fully aware of Chuck Norris’ success, history, brand, and image,” Norris’ lawyer stated, “which resulted in CBS agreeing to become the primary distributor of [Walker].”
Norris’ complaint also states the companies have rejected and ignored deals with third parties that were willing to pay premium for Walker, and they “instead chose to engage in self-dealing transactions to benefit only themselves.” One example is Katz Broadcasting, which had a license for Walker and wished to extend its license through SONY for an additional four years, totaling $5 million dollars. SONY, according to the complaint, ignored Katz’s offer and allowed for the license period to lapse, giving Walker away to a lower-tier cable network that was owned by SONY.
Moreover, no agreements or copies were ever presented or reported to Norris or Top Kick, relating to CBS and SONY entering into licensing and other agreements with third parties. By failing to report these agreements with third parties, as well as ignoring third parties who wanted to pay a larger percentage, Norris claims the companies did not act in good faith within their contractual obligations and have used his popularity and “imagery” as a social icon for exploitation.
With changes in technology, CBS and SONY have been using streaming video-on demand (“S-VOD”), instead of focusing on television and DVDs. This, according to the contract, falls under exploitation. As a result, since 2004, that S-VOD revenue has not been accounted for when calculating Walker’s profit.
The complaint states Top Kick and Norris do not know how much revenue has been generated through S-VOD alone, since the companies had failed to accurately report. With the show’s success and popularity, however, more than $692 million has been generated in total revenue. According to Norris, CBS and SONY have failed to pay him his share “of the profits earned from any, and all, exploitation of Walker.”
Norris and Top Kick have requested a trial by jury. No comment has been made by officials from CBS or SONY.
Ashley Cullins, Chuck Norris Hits CBS, Sony With $30M Lawsuit over ‘Walker, Texas Ranger’ Profits, The Hollywood Reporter (Feb. 1, 2018,).
Complaint and Demand for Jury Trial, Top Kick Productions v. CBS Broadcasting, CBS Corp., SONY Pictures Television, No. BC-692372 (Super. Ct. of Cal., Los Angeles Ctny.).
Denise Petski, Chuck Norris Sues CBS & Sony TV For $30M Over ‘Walker, Texas Ranger’ Profits, Deadline (Feb, 1, 2018).
Douglas Ernst, Chuck Norris takes on Sony, CBS in $30M lawsuit over ‘Walker, Texas Ranger’ profits, Washington Times (Feb 2, 2018).
Nicole Bitette, Chuck Norris is suing CBS, Sony for $30 M over ‘Walker, Texas Ranger’ profits, N.Y. Daily News (Feb. 2, 2018).
Photo courtesy of Amazon.
Written By Liz Lehmann
On January 23, 2018, Onondaga County (the “County”) joined many cities and counties across the nation in suing pharmaceutical companies and drug distributors over their role in the opioid crisis.
Opioids killed more than 42,000 people in 2016 nationwide, 142 of which were in Onondaga County. Forty percent of all opioid overdose deaths involved a prescription opioid. The amount of prescription opioids sold to pharmacies, hospitals and doctors’ offices has quadrupled in the last decade, where the overall change in the amount of pain that Americans reported has been unchanged. Studies indicate that many users begin with pills but shift to injecting heroin due to its cheaper cost.
In response, individuals, as well as municipal and county governments, are filing lawsuits against the leading opioid manufacturers and distributors, alleging that the opioid addition stems from the manufacturers’ over-promotion and sales of prescription opioid medications, such as OxyCotin, Percocet, Vicodin, and numerous generics.
The County’s Complaint names over two-dozen defendants, including Purdue Pharma (manufacturers of OxyCotin), Teva Pharma and its subsidiary Cephalon (manufacturers and distributors of fentanyl, a synthetic opioid), Johnson & Johnson and its subsidiary Janssen Pharmaceuticals, and Endo Health Solutions (manufacturers of oxymorphone and hydrocodone products).
The causes of action consist of negligence, fraud, deceptive acts and practices, false advertising, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The Complaint alleges that defendants disseminated false and misleading messages, downplaying the seriousness of prescription opioids and creating false perceptions that they were safe and effective for the long-term treatment of pain.
The County’s claim for relief include costs for providing medical care; treatment, counseling, and rehabilitation services; treatment of infants born from opioid-related medical conditions; care for children whose parents suffer from opioid-related disability; and costs associated with law enforcement and public safety relating to the opioid epidemic.
Another Big Tobacco Moment?
The growing number of lawsuits against drug manufacturers and distributors has led some to wonder whether the opioid crisis will deal Big Pharma its Big Tobacco moment. In the 1990s, several states—including New York—sued the major cigarette manufacturers to recover Medicaid and other costs associated with treating sick and dying cigarette smokers. In 1998, the cigarette manufacturers and 46 states entered into a Master Settlement Agreement, imposing prohibitions and restrictions on tobacco advertising and practices that sought to hide negative information about smoking, in addition to the requirement that a tobacco prevention foundation be created. The Agreement also had a $248 billion civil payout, from which hundreds of millions of dollars went to New York State.
Experts and attorneys distinguish the present litigation from the tobacco settlement, however. The big difference? The current cases involve causes of action against companies who appear to be fully compliant with the law. Unlike tobacco, where cigarettes are bought directly from the manufacturer to the consumer and can harm smokers and nonsmokers alike, prescription opioids are individually taken upon the recommendation and advice of a doctor. Addictions arise from the misuse of the prescription opioid. Should the drug manufacturer be responsible for such misuse?
Another shortcoming may be the plaintiffs’ failure to demonstrate specific instances where drug companies misled doctors or consumers. A recent lawsuit filed by the City of Chicago against Big Pharma had four out of five of its defendant manufacturers dismissed for such lack of specificity. The remaining defendant—Purdue—had already added clear warnings of the risks of addiction to its OxyCotin labels after pleading guilty to criminal misbranding in 2007. Also as a result from the 2007 charges, Purdue changed its manufacturing process to include “abuse-deterrent technology,” making the drugs nearly impossible to crush, snort, or inject.
Overall, as a general matter, it may be difficult for the courts to assign blame when it comes to the opioid epidemic, where pain medications are lawful, approved, and regulated by the FDA, in addition to including many intermediaries.
Big Pharma’s Response
Some of the named defendants have issued public release statements. Regarding this Complaint, Purdue stated:
We maintain that the allegations made in these lawsuits against our company are baseless and unsubstantiated. Our actions in the marketing and promotion of our opioid pain medicines were appropriate and responsible. At the same time we recognize that opioid abuse and addiction are serious public health issues that must be addressed. Finding those solutions will require collaboration among many stakeholders across the country. We look forward to being a part of the ongoing dialogue and finding ways to address the crisis.
Despite Big Pharma’s denial of wrongdoing, settlements have been reached in other lawsuits involving opioid manufacturers and distributors. In late 2015, Purdue paid $24 million in a settlement agreement to the state of Kentucky on the claim that Purdue had marketed their OxyCotin drug as safe. In 2017, Mallinckrodt PLC—a defendant in the County’s present lawsuit—paid $35 million to resolve an investigation into their monitoring and reporting methods for suspicious orders of opioids. Costco paid $11.75 million in 2017 based on an investigation indicating that they had irresponsibly filled improper or incomplete prescriptions.
Settlement discussions are underway in jurisdictions across the nation. Some manufacturers, such as Purdue, have proposed a global settlement in an attempt to cease investigations and lawsuits. However, lengthy litigation will likely ensue and it is expected that more cities and counties will join in the legal onslaught.
Andrew Donovan, Onondaga County Blames Opioid Manufacturers and Distributors for Heroin Crisis, Files Lawsuit, LocalSYR.com (Jan. 23, 2018),
Complaint and Jury Demand, County of Onondaga v. Purdue Pharma, L.P. et al. (N.D.N.Y. 2018).
Eric Heisig, Federal Judge Presiding Over Opioid Litigation Will hold Jan. 31 Conference for Settlement Talks, Cleveland.com (Jan. 12, 2018).
Erika Fry, Big Pharma Is Getting Hit With a Huge Wave of Opioid Suits, Fortune (Sept. 27, 2017).
Jef Feeley and Jared S. Hopkins, Purdue Approaches States in Bid to Settle Opioid Claims, Bloomberg (Nov. 17, 2017).
Lindsey Pasieka, Opioid Lawsuits, ConsumerSafety.org (2018).
The Master Settlement Agreement: An Overview, Tobacco Control Legal Consortium (2015).
Sanja Gupta, Unintended Consequences: Why Pain Killer Addicts Turn to Heroin, CNN (Jun. 2, 2016).
Understanding the Epidemic, Centers for Disease Control and Prevention (Aug. 30, 2017).
Zachary A. Siegel, Suing Big Pharma for the Opioid Epidemic Is Too Little, Too Late, Medium (Oct. 11, 2017).
Photo courtesy of TLI.
Written By Briannie Kraft
In September of 2016, two former gymnasts came forward accusing Larry Nassar, a former doctor for USA Gymnastics and Michigan State Athletics, of sexually assaulting them during their treatments with him. Over the next several months, more than 150 victims came forward with similar stories of abuse by Nassar.
Nassar pled guilty to assaulting seven girls on November 22, 2016, and he proceeded to sentencing earlier this month. From January 16th to 24th, more that 150 statements were read aloud by either victims or parents of victims. Judge Rosemarie Aquilina, who remarked that this case had “shaken [her] to [her] core,” presided over the proceeding, ultimately dealing Nassar a 175-year prison sentence.
This issue of victim statements in criminal cases was first addressed by the Supreme Court of the United States in 1987 in Booth v. Maryland. There, the Court did not allow victim impacts statements to be made at any point during the criminal process, holding that it was a violation of the Eighth Amendment, posed potential bias concerns, and lacked relevancy to the guilt of the defendant.
In 1991, however, the Supreme Court overturned its Booth rule in Payne v. Tennessee. Veering from immediate precedent, the Court decided to allow victim impact statements only at the sentencing stage of a criminal proceeding. As the “victims’ rights” movement was sweeping across the nation, one of the motivating factors for this change was to give victims of crimes a place in the criminal justice system.
Victim Statements as Healing
During Nassar’s sentencing proceeding, Judge Aquilina allowed statements to be made by nearly any victim wishing to speak. Over the course of a week, the Court heard more than 150 victims and parents give vivid accounts of the abuse they, or their children, had suffered, as well as the effects it did and does have on their lives.
In both the scientific and legal fields, experts opine that victim impact statements are a positive contribution to victims’ healing processes, as the statements offer victims an opportunity to confront their abuser in a safe and procedurally-protected place. Research conducted by Mothers Against Drunk Driving (MADD) helps to illustrate this point. MADD found that 62% of victims were “satisfied” with the criminal justice system, if they were allowed to present an oral victim impact statement. Meanwhile, 75% of victims, who were not given the opportunity to give any form of a victim impact statement, were “dissatisfied” with the criminal justice system. The study concluded that victim trauma was reduced when victims were “taken seriously and believed[,]” as well as when victims were kept up-to-date with regard to their case.
In this case, a prime example is the first woman to go public with Nassar’s abuse. Rachael Denhollander, one of Nassar’s victims, shared the importance of victim impact statements, saying, “Once I started to see that this process was therapeutic – just because of how much you have to talk about it – I wanted to take every chance I could to liberate myself.”
Victim Statements as Information
Beyond the healing affect they can offer victims, these statements, in the context of sentencing, can also provide sentencing judges with a fuller picture of the harm the defendant caused victims (and/or others). As it is in society’s favor that judges make well-informed decisions, victim impact statements are one way by which a judge may be more fully prepared for sentencing. In this case, for example, Judge Aquilina heard statements from victims who ranged in age, time of abuse, length and extent of abuse, and background, in addition to hearing from some of the parents. Such a range of victim impact statements provides, in theory, a fuller illustration of the extent and effects of Nassar’s crimes. Moreover, as defendants are permitted to plead their case and mitigating circumstances to the court during the sentencing process, victims seek a similar opportunity.
In contrast, however, courts also take into account that there are “instances where the admission of a victim impact statement is unduly prejudicial against the defendant.” The means in which statements are delivered, and the number of statements presented, are two of many considerations judges take into account with regard to the assessment of prejudice. In Nassar’s case, there is controversy surrounding the volume of statements permitted at sentencing, as well as the impact of those statements.
According to Stephen Gillers, a professor of law at New York University, what was “unusual [in Nassar’s case was] that the number of victims who [were] willing to speak [gave] the judge more than 100 opportunities to [say what she thought about the case].” Judges are supposed to be neutral and detached magistrates. Here, at one point Judge Aquilina stated to the victims, “Your words are a sign you are are healing, and taking your power back…and he will fall, and you will rise. You and your fellow sisters are enabling him to remain behind bars for the rest of his natural life.” This was just one example among many of Judge Aquilina sharing her thoughts about Nassar and the victims throughout the sentencing proceeding.
Judge Aquilina cited People v. Waclawski, a 2009 Michigan Court of Appeals case, as support for the volume of victim impact statements.
“[Michigan laws] grant individuals who suffer direct or threatened harm as a result of a convicted individual’s crime the right to submit an impact statement both at the sentencing hearing and for inclusion in the PSIR; however, the right is not limited exclusively to the defendant’s direct victims. Instead, ‘a sentencing court is afforded broad discretion in the sources and types of information to be considered when imposing a sentence . . . ’ (citation omitted). Moreover, this broad discretion does not infringe on a convicted individual’s due process rights, because the evidence was not taken into consideration in determining the defendant’s guilt.”
On a national scale, however, the aforementioned arguments –– on one hand, the healing and source of information, on another hand, the impact and volume of statements –– have initiated a larger, national conversation on such actions within a sentencing proceeding. Moving forward, perhaps we will see these matters addressed in more state and federal sentencing courts matters. For now, in this case, it is possible that Nassar will appeal.
Booth v. Maryland, 482 U.S. 496, 499 (1987).
Payne v. Tennessee, 501 U.S. 501 808, 822-24, (1991).
Payne v. Tennessee, 501 U.S. 501 808, 834, (1991) (See J. Scalia, Concurring).
People v. Waclawski, 286 Mich. App. 634, 691-692 (2009).
The Daily: Thursday, January 25, 2018, The New York Times (Jan. 25, 2018) (downloaded using iTunes).
Scott Cacciola, Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge, The New York Times (Jan. 23, 2018).
CNN Staff, Read Judge Rosemarie Aquilina’s powerful statement to Larry Nassar, CNN (Jan, 24, 2018).
Eric Levenson, Larry Nassar Sentenced to 175 Years in Prison for Decades of Sexual Abuse, CNN (Jan. 24, 2018).
Joshua Barajas, Sexual Abuse Survivors Confront Former USA Gymnastics Doctor: ‘Little girls don’t stay little girls forever,’ PBS New Hour (Jan. 24, 2018).
Josh Hafner, The Judge in the Larry Nassar Trial: Incredible Quotes to Victims and their Abuser, USA Today (Jan. 24, 2018).
National Institute of Justice, Victim Impact Statements (Dec. 4, 2007).
Paul G. Cassell, Walter C. reckless-Simon dinitz Memorial Lecture: In Defense of Victim Impact Statements, 6 Ohio St. J. Crim. L. 611, 621-29 (2009).
Annett van Der Merwe, Therapeutic Jurisprudence at the Conference of the International Association of Law & Mental Health in Paudu, Italy: Addressing Victims’ Harm: The Role of Impact Reports, 30 T. Jefferson L. Rev. 319, 397 (2008).
Trey Hill, Victim Impact Statements: A Modified Perspective, 29 L. & Psychol. Rev. 211, 216 (2005).
Kenji Yoshino, The City and the Poet, 114 Yale L. J. 1835, 1877 (2005).
Photo courtesy of ABC News.