Current Events in April 2005

Talk America is being acquired by privately-held Cavalier Telephone & TV for $251 million.

Ed Meyercord, chief executive officer of Talk America, will become CEO of Richmond, Virginia-based Cavalier. Brad Evans, current CEO of Cavalier, will become Cavalier's executive chairman. Talk America is based in Reston, Virginia.

The combined company will serve more than 550,000 residential customers and 85,000 business customers and will have more than 2,000 staffers. It would have annual revenue of more than $750 million and a presence in six of the country's 20 largest markets -- Philadelphia, Washington, Baltimore, Cleveland, Detroit and Atlanta.

Cavalier is a privately held company whose equity holders include MC Venture Partners, Banc of America Capital Investors and BB&T Capital Partners. It is one of the few "new entrants" in the local and long-distance business to survive the tough shake-out that followed Congressional passage of the Bell-friendly 1996 Telecommunications Act.

Founded in 1989, Talk America began as a provider of long distance phone service to residential and small business customers. In 2000, the company began offering a bundle of local and long distance phone services to residential and small business customers.

Eli Lilly and Company has agreed to plead guilty and pay $36 million in connection with its illegal promotion of its drug Evista. The Justice Department said the company is pleading guilty to a criminal count of violating the Food, Drug, and Cosmetic Act by misbranding the drug.

Lilly will pay a $6 million criminal fine and forfeit to the United States an additional sum of $6 million. In addition to the criminal plea, Lilly has agreed to settle civil Food, Drug, and Cosmetic Act liabilities by entering into a consent decree of permanent injunction and paying the United States $24 million in equitable disgorgement.

At issue is Lillys marketing of Evista, which was approved by the FDA for prevention and treatment of osteoporosis.

The FDA charges that Evista sales were so disappointing its first year on the market, Lilly starting promoting the drug for unapproved uses -- which is illegal. Once approved by the FDA, the drug may not be legally marketed or promoted for so-called off-label uses - any use not specified in an application and approved by the FDA.

In October of 1998, the company reduced the forecast of Evistas first years sales in the U.S. from $401 million to $120 million, prosecutors said. An internal Lilly business plan noted a disappointing year versus original forecast. The information filed with the court alleges that Lillys strategic marketing plans and promotion touted Evista as effective in preventing and reducing the risk of diseases for which the drugs labeling lacked adequate directions for use.

According to the information, Lillys Evista brand team and sales representatives promoted Evista for the prevention and reduction in risk of breast cancer, and the reduction in the risk of cardiovascular disease.

Under the provisions of the Food, Drug, and Cosmetic Act, Evista was misbranded when its labeling did not bear adequate directions for each of these intended uses. As alleged in the information, Lilly promoted Evista as effective for reducing the risk of breast cancer, even after Lillys proposed labeling for this use was specifically rejected by the FDA.

The agency maintains that potential problems that can arise from off-label use without the benefit of careful FDA oversight include the possibility that the promoted drug was used instead of another drug that had already been approved by the FDA for a particular use.

The information alleges that Lilly executed its illegal conduct using a number of tactics, including:

• One-on-one sales pitches by sales representatives promoting Evista to physicians about off-label uses of Evista. Sales representatives were trained to prompt or bait questions by doctors in order to promote Evista for unapproved uses;

• Encouraging sales representatives promoting Evista to send unsolicited medical letters to promote the drug for an unapproved use to doctors on their sales routes;

• Organizing a market research summit during which Evista was discussed with physicians for unapproved uses, including reducing the risk of breast cancer; and

• Creating and distributing to sales representatives an Evista Best Practices videotape, in which a sales representative states that Evista truly is the best drug for the prevention of all these diseases referring to osteoporosis, breast cancer, and cardiovascular disease.

The complaint for permanent injunction alleges that Lilly executed its illegal conduct using a number of additional tactics, including:

• Training sales representatives to promote Evista for the prevention and reduction in the risk of breast cancer by use of a medical reprint in a way that highlighted key results of Evista and thereby promoted Evista to doctors for an unapproved use. The complaint says some sales representatives were instructed to hide the disclosure page of the reprint which noted, among other things, that All of the authors were either employees or paid consultants of Eli Lilly at the time this article was written, and The prescribing information provides that The effectiveness of [Evista] in reducing the risk of breast cancer has not yet been established.;

• Organizing consultant meetings for physicians who prescribed Evista during which unapproved uses of Evista were discussed; and

• Calculating the incremental new prescriptions for doctors who attended Evista advisory board meetings in 1998. The advisory board meetings included discussion of unapproved uses for Evista. By measuring and analyzing incremental new prescriptions for doctors who attended the advisory board meetings, Lilly was using this intervention as a tool to promote and sell Evista.

There is an all too familiar scenario for home purchasers and refinancers that has consistently been one of the major mortgage-related consumer complaints to state and federal agencies for the past few years -- title insurance trickery and "good faith estimates" of settlement costs that turn out to be hundreds (if not thousands) of dollars off the mark.

At least ten states are investigating alleged title insurance fraud. These investigations involve not only a number of America's top title insurance companies but two super-size lenders, a national real estate company, and a large number of large homebuilding corporations.

One scheme under scrutiny in California, Washington and Colorado, is very complicated and involves not only the title company and the middleman -- the lender, homebuilder or real estate company -- but a reinsurance company, usually a subsidiary of the middleman.

In New York, Attorney General Eliot Spitzer is wrapping up a two-year probe. he is expected to accuse major title insurers of charging inflated fees that let them cover kickback payments to major developers.

In Florida, a title agent accused of stealing more than $1.1 million in customer escrow funds took the money along with her boyfriend and coworkers on a Las Vegas junket, but didnt bet on getting caught.

Kathryn Knight, 37, also known as Kathryn Weed, was operating Weed & Associates Title Services when American Pioneer Title Insurance Company conducted an audit and discovered discrepancies in Weed & Associates escrow account.

Fraud detectives determined that Knight misappropriated in excess of $1.1 million from the escrow account and used these funds to buy vehicles, the Las Vegas getaway and make a down payment on a $9 million land purchase. Her title agent license was immediately revoked and she faces up to 60 years in prison if convicted on the charges, according to Florida's Division of Insurance Fraud.

What to Watch for

Different or previously undisclosed charges for processing and other charges may appear out of nowhere on the HUD-1 settlement sheet. You are dealing with a number of entities, including a lender, a real estate professional, settlement agent and often a mortgage broker. Be sure to find out about the services and fees of each one ahead of time and make sure the actual charges match the estimates.

For example, when a property owner sells or refinances his or her house, she should expect to pay certain fees, including fees to the real estate agent, as well as to the settlement agent.

Title companies generally act as settlement agents. As such, they must establish and maintain escrow accounts which contain assets held in trust.

Settlement agents are also required to track all receipts and disbursements from each settlement and escrow account, and, among other things, affirmatively agree to secure and file all documents which are part of the transaction.

In exchange for performing these services, the title company charges customers fees as well.

Be alert, read the documents and ask questions about new or previously undisclosed fees. If you have recently sold or refinanced your home and paid a lot of unexpected or undocumented fees in connection with your transaction, you should file a consumer complaint.

Automatic four-month extensions are available by phone or online via computer, as well as through the paper Form 4868. The IRS expects to receive almost 9 million extension requests, which must be made by the normal filing deadline.

An extension of time to file does not give you more time to pay any taxes owed. A person may choose to pay any projected balance due when requesting an extension, and the payment may be made electronically. Even without a payment, one can still get the extension.

Whether requesting an extension electronically or on paper, the taxpayer must estimate the total tax liability based on the information available. If the IRS later finds this estimate to be unreasonable, the extension will be null and void. The taxpayer will still get credit for any payments made with the extension request.

The IRS has a special toll-free phone line for extensions 1-888-796-1074 for those who filed a tax return for 2003. Callers may use Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, as a worksheet to prepare for the call, figuring their 2004 tax and total payments made.

They get a confirmation number signifying that the extension request has been accepted. They should put this confirmation number on Form 4868 and keep it for their records. They do not send the form to the IRS.

Taxpayers may also e-file an extension request using tax preparation software on their own computer or by going to a tax preparer. Those filing by computer get an acknowledgment that the IRS has received their request.

Taxpayers asking for extensions by phone or computer can choose to pay any expected balance due by authorizing an automatic withdrawal from a checking or savings account. They will need the appropriate bank routing and account numbers for that account. They must also have the adjusted gross income (AGI) from their 2003 tax return to verify their identity.

Another way to get a filing extension is to charge an extension-related payment to an American Express, Discover Card, MasterCard or Visa account. The authorized processors take payments through their phone and Web site systems. There is no IRS fee for credit card payments, but some processors may charge a convenience fee. Use Form 4868 as a worksheet; it has details on making credit card payments.

Another way to get a filing extension is to charge an extension-related payment to an American Express, Discover Card, MasterCard or Visa account. The authorized processors take payments through their phone and Web site systems. There is no IRS fee for credit card payments, but some processors may charge a convenience fee. Use Form 4868 as a worksheet; it has details on making credit card payments.

Taxpayers may also charge the taxes due for 2004, estimated taxes for 2005, or installment agreement payments for 2000 or later, but such charges do not give an extension of time to file.

Taxpayers who live outside the United States and Puerto Rico and whose main place of work is outside the United States and already have a filing extension to June 15. This June deadline also applies to those in military service on duty outside the country, but not in a combat zone or a qualified hazardous duty area. (A special, longer extension applies to those in such a zone/area, or away from their permanent duty station in support of operations in such a zone/area.) Taxpayers with the June deadline can file a Form 4868 or make an extension-related credit card payment by June 15 to get an additional two months to file. They cannot request this extension by phone. Merely being outside the United States on the April deadline does not give a person an extension to June 15.

Interest charges apply to any tax not paid by the regular deadline. The current rate is 6 percent a year, compounded daily, and is subject to change each calendar quarter. Taxpayers who request an extension may also be liable for a late payment penalty of 0.5 percent per month if the total tax paid by the regular deadline is less than 90 percent of the actual 2004 tax.

One deadline that taxpayers cannot extend is the date to claim a refund for Tax Year 2001 if they have not yet filed for that year. Unless they had a filing extension in 2002 for their 2001 return, they must mail such late returns by April 15, 2005.

April 8, 2005
The threat of severe allergic reactions by children is a danger that is very real and ever present and one that we cannot ignore. While it may seem that severe allergic reactions are becoming more common, the reality may simply be that diagnosis and awareness have increased. It really doesnt matter. The point is that anyone who has children or works with children must become knowledgeable about minimizing risk and reacting quickly and correctly if a crisis occurs.

One of the most lethal allergens is that preschool staple, peanut butter. This seemingly innocuous substance is positively lethal to those who are allergic to it. There are many other common allergies that pose a risk of death and are not likely to be outgrown. They include allergies to tree nuts, shellfish, cow's milk, eggs and fish.

The deadly risk comes from the reaction called anaphylaxis -- difficulty breathing, swelling of the mouth and throat, a drop in blood pressure and loss of consciousness -- sometimes to the point of a coma and death. As little as one-fifth to one-five-thousandth of a teaspoon of the offending substance has caused death.

According to the American Academy of Allergy, Asthma and Immunology, five percent of children have food allergies. One percent of the American population -- three million people -- are allergic to peanuts or tree nuts, the most virulent allergy.

Anaphylaxis doesnt usually occur the first time a person eats a particular food, but after exposure to an allergin to which he or she has been sensitized. Allergic children may break out in hives if they so much as kiss someone who has eaten a peanut or if they merely touch a surface -- like a table or doorknob -- where peanuts or peanut butter have been. Peanut protein survives for six months.

Not only is the peanut protein long-lived, but the peanut allergy can survive death. A man who received a liver and kidney transplant inherited a peanut allergy from the donor, a 22 year-old who had fallen into a coma and died after eating satay sauce.

Several months after the transplant, the recipient suffered a skin rash and difficulty breathing after eating peanuts. Doctors traced the newly developed allergy to blood cells primed to recognize the allergins that were passed along with the liver.

A 1992 Johns Hopkins study involving 13 children, six of whom died and seven of whom nearly died, recommended that epinephrine, a form of adrenaline, be kept available in schools and day care centers. These recommendations have been incorporated in settlement agreements negotiated between child care centers and the Department of Justice under the Americans With Disabilities Act.

As announced in an October 1998 Justice Department press release, staff at La Petite Academy will administer epinephrine to children who experience life-threatening allergic reactions to foods such as peanuts or bee stings.

The agreement with La Petite Academy, which operates more than 750 day care centers (one in D.C., 14 in Maryland, and 35 in Virginia), also contained a provision modeled after an earlier agreement with KinderCare, the nation's largest child care.

Schools, day care centers, churches and private child care workers should be aware of the risk, have epinephrine on hand and train workers and volunteers in its use. Those who fail to do so may face serious legal consequences if a child dies as a result of their failure to do so.

Sony BMG's bad few weeks are turning into a bad month, as the state of Texas filed suit against the corporation for violating the state's new laws against spyware.

The suit stems from Sony's use of a copy-protection software "rootkit" that installs hidden files on a user's computer, which can cripple it and leave it vulnerable to outside attacks.

In a press conference announcing the suit, Texas Attorney General Greg Abbott accused Sony of "acting illegally" in hiding secret files on computers, and engaging in a "high-tech cloak and dagger" enterprise.

"This would be the most outrageous form of invasion of privacythat the new spyware act was created to prevent," Abbott said.

Although Sony has publicly stated that it is recalling all CD's that contain the copy-protection software, the Attorney General's investigators claim to have found CD's containing the software at retail stores throughout the Austin area.

In addition to the Texas lawsuit, private attorneys are investigating the possibility of a class action lawsuit against Sony for violating California's spyware-prevention laws as well.

The Association for Freedom in Electronic Interactive Communications-Electronic Frontiers Italy (ALCEI-EFI), a Milan, Italy-based digital rights advocacy group, filed a complaint with Italy's cybercrime authorities over Sony's usage of the software. The investigation may lead to criminal charges being filed against Sony.

The complaint, issued on Nov. 4, states that "It isunacceptable that any products containing invasive software are sold, especially when its presence is not properly disclosed and notified to the users. Furthermore, it is unacceptable that, after committing such serious offenses, anyone can believe that 'releasing a patch' can be enough to relieve the offender's responsibility."

Patch Criticized

The "patch" Sony issued to users has come under intense criticism as well. The "patch" does not actually remove the rootkit from an affected computer, but merely renders it visible to the user.

The patch itself was found to open an even bigger security hole, thanks to a flaw that enables an outside attacker to command the "patched" machine to download any code desired to the user's hard drive.

Several computer security analysts advised against downloading Sony's Web-based uninstaller until a suitable version was released, or to use alternate methods of removing the copy-protection software.

As if that weren't enough, the rootkit was found to contain elements identical to "LAME," an open-source software MP3 encoder. First4Internet, the British company that created the rootkit for use on Sony CD's, was alleged to have used the LAME code without indicating its origin or sharing their alterations to the code.

In other words, software designed to prevent copyright infringement was itself being used in violation of copyright.

Sony's recall encompasses approximately 5 million CD's that contain the rootkit. Although the number of affected computers is still unknown, security expert Bruce Schneier has said it may be as many as "half a million."

Schneier criticized computer security companies such as McAfee and Symantec for not responding quickly enough to provide tools for detecting and removing the rootkit.

"What happens when the creators of malware collude with the very companies we hire to protect us from that malware?" he said. "We users lose, that's what happens. A dangerous and damaging rootkit gets introduced into the wild, and half a million computers get infected before anyone does anything."

More than 200 pharmacies, including Wal-Mart and Discount Drug Mart, have signed up for AGRx, an Ohio Web site listing prices from pharmacies of the top 25 prescription drugs.

"It is my hope that this service will become a tool seniors on fixed incomes, the uninsured and those lacking adequate prescription drug coverage can use to comparison shop to find lower prices for their prescription drugs," said Attorney General Jim Petro, who unveiled the site.

Using AGRx is as easy as choosing a drug and/or a region in which you live. The search engine lists the participating pharmacies and prices for drugs in that region, which are updated every three months. The price does not include discounts for insurance or for any other reason.

AGRx can be found at www.ag.state.oh.us/site_map/agrx.htm. It also includes a one-stop resource linking consumers to federal and state prescription drug discount programs and services. Many pharmacies will help consumers find a suitable discount program.

Pharmacies listed on AGRx have volunteered to be part of the program to help consumers save money on their prescriptions. Pharmacies will continue to sign up throughout the year. Consumers who don't see their local pharmacy listed can tell them to call 1-800-282-0515 to sign up. Participating pharmacies send price updates every three months.

The 25 drugs used in AGRx are from Pharmacy Times' annual report of the top 200 drugs dispensed, retailed or sold by mail order across the country.

The days of free and easy travel between the U.S., Mexico, and Canada are coming to an end. You'll soon need a passport to enter -- or re-enter -- the U.S. from its North American neighbors.

The Departments of State and Homeland Security have announced a new policy, the Western Hemisphere Travel Initiative, requiring all U.S. citizens, Canadians, citizens of the British Overseas Territory of Bermuda, and citizens of Mexico to have a passport or other accepted secure document to enter or re-enter the U.S. by January 1, 2008.

Currently, U.S. citizens, and some citizens of other Western Hemisphere countries, are not required to present a passport to enter or re-enter the U. S. But legislation passed after the 9/11 ttack gives Homeland Security to require the use of passports by everyone entering the country.

"Our goal is to strengthen border security and expedite entry into the United States for U.S. citizens and legitimate foreign visitors," Homeland Security Acting Under Secretary for Border and Transportation Security Randy Beardsworth said.

DHS and the State Department say they plan to roll out the program in phases, providing as much advance notice as possible.

While a passport will be the document of choice for entry or re-entry, the State Department says it also expects the Border Crossing Card, BCC - or "laser visa," will also be acceptable. Currently, the BCC serves in lieu of a passport and a visa for citizens of Mexico traveling to the U.S. from contiguous territory.

Florida Attorney General Charlie Crist has filed the state's first legal action under the state's nine-month-old Anti-Spam law, accusing two former Fort Lauderdale residents who now live in Tampa of running a bogus email and internet operation responsible for more than 65,000 illegal emails.

The illegal messages linked recipients to more than 75 different websites engaged in fraudulent or illegal business activities, including pharmaceutical and cigarette sales and the illegal downloading of copyrighted movies.

In announcing the lawsuit, Crist was joined by Nancy Anderson, Vice President and Deputy General Counsel for Microsoft Corporation, which played a key role in detecting the unlawful spam operation.

The complaint accuses Scott J. Filary, 25, and Donald E. Townsend, 34, of sending or assisting the sending of more than 65,000 deceptive emails, including 48,000 since the Florida Electronic Mail Communications Act took effect last July 1.

Filary and Townsend face penalties of up to $500 per email message under the state Anti-Spam law, for a total potential penalty of $24 million. The two face additional penalties under the Florida Deceptive and Unfair Trade Practices Act for deceptive emails sent before the Anti-Spam law was passed at Crist's urging.

"Spam is a pervasive and growing threat to unsuspecting computer users everywhere," said Crist. "The Spam itself is illegal, but it is made even worse when it seeks to rip off Florida consumers. Florida's Anti-Spam law was adopted precisely to stop operations such as this one. We are also grateful for the valuable assistance of Microsoft in this case."

Microsoft captured more than 65,000 unlawful emails through its MSN Hotmail trap accounts and provided them to the Attorney General's Office for investigation and enforcement. The emails in turn link recipients to deceptive websites connected to Filary and Townsend.

Since May 2004, more then 350 domain names for internet websites were registered to a "J. Scott" through various assumed names at a Fort Lauderdale post office box registered to Filary. More than 85 new domain names have been registered this year, including 44 in one day alone. Filary and Townsend recently moved from Fort Lauderdale to Tampa.

The websites linked to the two men were promoted by illegal email campaigns, often lasting only days before a new campaign would begin with an identical website but a new website name.

In one instance, Spam messages directed recipients to online pharmacy websites that imposed substantial undisclosed "dispensing fees" adding more than 25 percent to the products' cost. More than 30 percent of the emails sent by Filary and Townsend contained blatantly false subject lines, while thousands of others contained misleading subject lines.

In addition, thousands of messages used false information to disguise the origin of the email, while many others wrongfully used invalid email addresses as the sender's address. Some of the messages attempted to recruit others to the scheme by offering commissions or services as an inducement for others to send emails on behalf of Filary and Townsend.

The Anti-Spam law, which was passed in the 2004 legislative session, prohibits unsolicited commercial email that contains false or deceptive information in the email subject line, contains a false or misleading email header identifying the origin or path of the email, or uses another person's internet domain name without permission.

It also prohibits an individual from sending information such as viruses designed to damage computer systems or from distributing software or any other system designed to falsify information in the email header, which would conceal the true origin of the email message. Violators face a penalty of up to $500 per email message.