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Legal news from Wednesday, April 27, 2011 |
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Former Ukraine PM sues gas company in US court
Maureen Cosgrove on April 27, 2011 4:18 PM ET

[JURIST] Former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] on Wednesday filed a corruption lawsuit in a US federal court against a natural gas trading company. In the suit against Swiss-based RosUkrEnergo [corporate website, in Russian], Tymoshenko seeks to reverse [AP report] a decision [text, PDF, in Russian] by the Stockholm Arbitration Court [official website] that forced Naftogaz [corporate website], a Ukrainian state energy company, to return 12.1 billion cubic meters of cubic gas [WSJ report] to RosUkrEnergo. The class action suit, which names more than 100 other individuals and companies as parties, was filed under the Racketeer Influenced and Corrupt Organization Act (RICO) [materials] and the Alien Tort Statute (ATS) [text], which grants US courts original jurisdiction over civil actions alleging violation of the law of nations.
Tymoshenko's government was dissolved last March after she narrowly lost the presidential election to Viktor Yanukovych [official website, in Ukrainian]. The Ukrainian Prosecutor General's Office (PGO) [official website, in Ukrainian] combined two separate criminal cases [press release, in Ukrainian; JURIST report] and concluded a pre-trial investigation of Tymoshenko in February. The combined cases against Tymoshenko include charges initiated in December for allegedly misappropriating state funds during her time as prime minister from 2007-2010 and new charges in January alleging that she abused her authority and exceeded her official duties [JURIST reports]. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. The probe was initiated in May 2004 and then suspended [JURIST report] in June 2005. Last February, Tymoshenko withdrew a lawsuit [JURIST reports] filed in the Supreme Administrative Court of Ukraine claiming that the country's presidential election was corrupt. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.


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Supreme Court rules federal arbitration law preempts state law
Daniel Makosky on April 27, 2011 2:32 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] 5-4 in AT&T v. Concepcion [Cornell LII backgrounder; JURIST report] that the Federal Arbitration Act (FAA) [text], which provides for judicial facilitation of private dispute resolution through arbitration when the transaction involves interstate commerce, preempts states from enforcing alternate solutions when arbitration clauses are considered unconscionable. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the FAA does not preempt a California unconscionability law, which allowed a class action against AT&T mobile despite a contractual clause prohibiting such proceedings. Reversing the Ninth Circuit, Justice Antonin Scalia wrote for the majority that, "[s]tates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." Justice Clarence Thomas filed a concurring opinion. Justice Stephen Breyer filed a dissent.
In 2002, Vincent and Liza Concepcion purchased a discounted cellular telephone from AT&T and later accused the company of false advertising and fraud upon discovery that they had been charged sales tax on the device's full value. Despite an arbitration clause in their service contract, the couple brought a federal class action suit against the company. Counsel for the Concepcions urged the Supreme Court to uphold the lower court rulings, arguing, in part, that the California law is valid because it "[ensures] that arbitration is a matter of consent and not coercion, and that it represents merely a choice of forum, but not an exemption from the law."


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Supreme Court hears final oral arguments for 2010 term
Jaclyn Belczyk on April 27, 2011 1:33 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Nevada Commission on Ethics v. Carrigan [oral argument transcript, PDF; JURIST report] on whether the First Amendment allows states to prevent government officials from voting on matters in which they have or appear to have a personal conflict. The Nevada Supreme Court, citing Citizens United v. Federal Election Commission [opinion, PDF; JURIST report], held [opinion, PDF] that preventing an official from casting such a vote violates the First Amendment because voting by an elected public officer on public issues is protected speech. Counsel for the petitioner, the Nevada Commission on Ethics, argued, "[n]eutral laws requiring official recusal for conflict of interest do not abridge free speech because a legislator's vote, however expressive, is not protected speech. It is, rather, a legally binding exercise of State power that he wields as an incident of public office." Counsel for the respondent, City Councilman Michael Carrigan, argued that a ruling for the petitioner would have a chilling effect on political activity.


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Accused Somali pirate pleads not guilty to hijacking charges
Maureen Cosgrove on April 27, 2011 1:30 PM ET

[JURIST] A Somali man pleaded not guilty on Wednesday in the US District Court for the Eastern District of Virginia [official website] to piracy, kidnapping and weapons charges related to a yacht hijacking in February that left four Americans dead. Mohammad Saaili Shibin is believed to have been the chief negotiator for the pirates [AP report] accused of the highjacking. Shibin, unlike the other pirates suspected in the hijacking, never boarded the yacht and acted as chief negotiator for the pirates who took control of the American-manned yacht in the Arabian Sea. Shibin, whom the US believes to be the highest-ranking pirate it has ever captured, is the first suspected pirate to be taken into custody in Somalia rather than at sea. Though Shibin denies guilt in this case, he acknowledged being paid $30,000 for his participation in negotiating the return of a German vessel that was taken hostage by pirates in May. The US government is currently negotiating with the German government, and additional charges are likely to be brought against Shidin in that case.
In April, a Somali pirate was sentenced [JURIST report] by the US District Court for the District of Columbia [official website] to 25 years in prison [press release, PDF] for attacking a Danish ship off the coast of Somalia in 2008, for which he and other pirates received a $1.7 million ransom. In March, a grand jury in the US District Court for the Eastern District of Virginia indicted [text, PDF] 14 suspects for overtaking Quest, a yacht operated by four Americans. The Americans, who were taken as hostages and later killed by the pirates, were the first US citizens to die in the recent wave of international maritime piracy [JURIST news archive]. The suspects, 13 Somali and one Yemeni, were charged [JURIST report] with piracy, conspiracy to commit kidnapping and the use of firearms during a crime. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].


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Guantanamo physicians ignored evidence of mistreatment: study
Daniel Makosky on April 27, 2011 10:14 AM ET

[JURIST] A study [text] released Tuesday by PLoS Medicine [journal website] asserts that US military medical personnel responsible for treating Guantanamo Bay [JURIST news archive] detainees consciously disregarded evidence of physical and psychological torture. The report's authors, including a retired US Army general, reviewed the medical records and case files of nine detainees, each of whom claim to have been subjected to treatment prohibited under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text]. Comparing the detainees' medical histories to their accusations of abuse, the study found that:The medical affidavits in each of the nine cases indicate that the specific allegations of torture and ill treatment are highly consistent with physical and psychological evidence documented in the medical records and evaluations by non-governmental medical experts. However, the medical personnel who treated the detainees at [Guantanamo Bay] failed to inquire and/or document causes of the physical injuries and psychological symptoms they observed. The study also argues that it is a breach of World Medical Association (WMA) [official website] ethical guidelines [text] for any medical professional to assist in concealing evidence of abuse.
The military detention facility at Guantanamo Bay, Cuba was opened in January 2002 [JURIST Archives report], and has consistently been a focal point for national and international controversy over the treatment of detainees. Earlier this week, WikiLeaks [official website] began publishing The Guantanamo Files [materials], a collection of more than 700 classified documents relating to the evidence and treatment of almost all detainees held at the facility between 2002 and 2008. A letter from a Guantanamo Bay detainee, made public in 2009, noted his deteriorating medical state and alleged that conditions at the prison worsened [JURIST report] for detainees in the year following President Barack Obama's election. In 2007, more than 260 doctors from 16 countries signed a letter critical of US military physicians for participating in the force-feeding of at least 128 detainees [JURIST reports] on hunger strikes.


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