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Legal news from Thursday, August 9, 2012




UN expert urges Colombia to advance dialogue with indigenous peoples
Sung Un Kim on August 9, 2012 3:34 PM ET

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[JURIST] UN Special Rapporteur on the rights of indigenous people James Anaya [official website] on Thursday urged [press release, in Spanish] the government of Colombia [BBC backgrounder; JURIST news archive] to advance its negotiations with indigenous authorities in northern Cauca regarding the military presence in the area, as well as other pressing issues. Anaya called for a good faith dialogue to find solutions in compliance with international human rights standards, noting that the indigenous people have the right to self-determination [UN News Centre report] and to freely pursue their economic, social and cultural development under the UN Declaration on the Rights of Indigenous People [text, PDF]. Anaya added that the Colombian government has the obligation to respect such rights and that it must consult with the indigenous authorities before it establishes military presence in their territories. The dialogue started when leaders of the Nasa tribe, in northern part of Cauca, attempted to expel governmental forces and members of the Revolutionary Armed Forces of Colombia (FARC) [BBC backgrounder] from their territories. There were reports of violence in the region against indigenous people and property committed by the forces.

Colombia has been facing armed conflict for decades without any sight of resolution. In June the country's Congress approved [JURIST report] a new law to provide a "Legal Framework for Peace" by a vote of 63-3. It is expected that the proposed law, backed by President Juan Manuel Santos [official website, in Spanish], will assist the government in engaging in peace negotiations with Leftist rebel groups including FARC and the smaller National Liberation Army (ELN) [BBC backgrounders] and stop the violence in the country. In December the representative to Colombia for the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] Christian Salazar called [JURIST report] for a peaceful solution to the country's ongoing violence. In June of last year President Santos signed legislation to compensate victims of the country's armed conflict after the Colombian senate passed [JURIST reports] it a month earlier. Multinational corporations have also been involved in the country's violence. The US Court of Appeals for the Eleventh Circuit [official website] revived a wrongful death lawsuit [JURIST report] brought against Drummond Company [corporate website] for hiring Colombian paramilitaries to assassinate plaintiffs' fathers. In 2010 victims of paramilitary violence filed suit [JURIST report] against Chiquita Brand International [corporate website] in the US District Court for the Southern District of Florida [official website] for funding a right-wing paramilitary group in Colombia that was accused of mass killings during the Colombia guerrilla warfare movement.




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Federal appeals court reverses its own ruling in motorist privacy case
Dan Taglioli on August 9, 2012 3:09 PM ET

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[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Monday overturned [opinion, PDF] the decisions of both a panel of its own judges and a lower court in the case of Senne v. Palatine [materials], a privacy lawsuit filed by a motorist against the village of Palatine, Illinois. Jason M. Senne filed suit against the village after receiving a parking ticket in August 2010, where the citation left on his windshield included his name, address, driver's license number, date of birth, sex, height and weight, the car's VIN number and other vehicle information details. Senne maintained that publicly displaying such information constituted a violation of the federal Driver's Privacy Protection Act (DPPA) [materials], which prohibits release of information found in motor vehicle records. The district court had granted Palatine's motion to dismiss on the grounds that issuing a parking citation was not a disclosure under the statute and that, even if it were, it fell within a specifically permitted purpose identified in the statute. A three-judge panel led by Judge Richard Posner affirmed the decision, but Senne appealed to the full court and was granted a hearing en banc. The full court reversed the earlier decisions, concluding "that the parking ticket at issue here did constitute a disclosure regulated by the DPPA, and … the facts as alleged are sufficient to state a claim that the disclosure on his parking ticket exceeded that permitted by the statute." The original citation was for a $20 parking violation.

Privacy can be a nebulous legal concept and is often litigated. Last week the American Civil Liberties Union (ACLU) [advocacy website] filed suit [JURIST report] in federal court against the new Stop Insider Trading on Congressional Knowledge Act (STOCK Act) [S 2038, PDF] requirement that federal employees disclose all financial transactions over $1,000. The ACLU maintains the provision is an unconstitutional invasion of these employees' privacy because the STOCK Act requires that these disclosures be readily available on the Internet. That same week the ACLU announced [JURIST report] that its affiliates in 38 states had sent letters to local and state police departments asking them to clarify how they use information obtained from automatic license plate readers (ALPRs), cameras mounted near roads and highways that photograph and record license plate numbers. There the ACLU expressed concern that police departments are gathering and storing information about the travel patterns of all vehicles, regardless of whether they are vehicles of interest, alleging that "responsible deletion of data is the exception, not the norm."




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Israel urged to investigate mistreatment of Palestinian detainees
Sung Un Kim on August 9, 2012 2:56 PM ET

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[JURIST] Amnesty International (AI) [advocacy website; press release] on Thursday stated that Israel should investigate the alleged mistreatment of two Palestinian prisoners currently on hunger strike [JURIST news archive]. The lawyer for Hassan Safadi and Samer al-Barq, who have been on hunger strike since June 21 and May 22 respectively, argued that they were subject to beatings and other maltreatment by prison officials at the Israel Prison Service Medical Centre in the city of Ramleh. The detainees have been diagnosed as being in high health risk and possibly facing death if they continue their hunger strikes. AI's Deputy Director for the Middle East and North Africa Ann Harrison called on Israeli authorities to immediately release Hassan Safadi, Samer al-Barq and all other administrative detainees, or promptly charged them with recognizable criminal offenses and have them tried in accordance with international standards. Safadi, who has been detained since June 2011 and ended his first hunger strike in May went on another hunger strike after his administrative detention was renewed for another six months.

In June AI urged the Israeli government to release all prisoners of conscience and other administrative detainees [JURIST report] or immediately try them under international fair trial standards. AI revealed that Israel has been using a number of laws, such as the Military Order 1651 and the Emergency Powers (Detention) Law, to detain only Palestinians despite its application to everyone. It also discovered that those who went on hunger strike were subject to ill-treatment and punishments. In May, UN Secretary-General Ban Ki-moon [official profile] called on Israel to try or release more than 1,000 prisoners [JURIST report] who had been on hunger strike to avoid health risks. Earlier the same month the Israeli Supreme Court [official website, in Hebrew] ruled against [JURIST report] two detainees who had been on hunger strike in their appeal seeking release from detention. During the same month, UN Special Rapporteur of the occupied Palestinian territory [official website] expressed its concern [JURIST report] for the continued human rights violations in Israel's prisons. It called the country to comply with the international standards of how to treat detainees.




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Federal judge vacates $147.2 million jury award against RIM
Dan Taglioli on August 9, 2012 2:08 PM ET

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[JURIST] The US District Court for the Northern District of California [official website] on Wednesday overturned a $147.2 million jury award against Research in Motion (RIM) [corporate website; press release]. Chief Judge James Ware granted a motion by RIM for judgment as a matter of law, vacating last month's jury verdict [Reuters report] that RIM had infringed on an Mformation Technologies [corporate website] patent covering a remote management system for wireless devices. RIM successfully argued that there existed a legally insufficient evidentiary basis for a jury to reasonably find infringement on the part of RIM. Judge Ware also granted RIM's motion seeking a new trial if Mformation should succeed in overturning the ruling, meaning the jury verdict will not be reinstated regardless of the outcome of appellate proceedings. Mformation, which originally filed its patent lawsuit against RIM in 2008, has yet to signal its intent to appeal the judge's ruling.

RIM has had legal and financial difficulties over the last few years as patent litigation has increased and RIM's competitors have performed better in the ever-growing mobile communications market. Last month RIM and Apple [corporate website] won an appeal with the US International Trade Commission (USITC) [official website], which upheld a ruling by its administrative law judge (ALJ) that RIM and Apple did not illegitimately use digital image preview technology [JURIST report] patented by Eastman Kodak [corporate websites]. Specifically the ALJ had ruled that the Kodak patent claim in question was in fact infringed by Apple and RIM products, but that the infringed claim was invalid as obvious [35 USC § 103 text] under the combination of an earlier US patent and a Japanese patent application, meaning Kodak could not recover from RIM for infringement. In 2009 the Securities and Exchange Commission (SEC) [official website] settled charges against four RIM executives [JURIST report] for stock options backdating. The four RIM executives were accused of backdating approximately 1,400 stock option grants to coincide with historically low closing prices of RIM stock.




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College and pro sports leagues sue New Jersey to prevent sports gambling
Julia Zebley on August 9, 2012 1:14 PM ET

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[JURIST] Professional and college sports leagues filed a lawsuit [complaint text, PDF] against the state of New Jersey Monday trying to enjoin a new law that would legalize sports gambling. The National Collegiate Athletic Association (NCAA), Major League Baseball (MLB), the National Football League (NFL), the National Hockey League (NHL), and the National Basketball Association (NBA) [corporate websites] filed suit in the US District Court for the District of New Jersey [official website] alleging that the new Sports Gambling Law violates the Professional and Amateur Sports Protection Act (PASPA) [text], the federal regulation prohibiting sports gambling. PASPA sequesters legal sports gambling to four states, which does not include New Jersey. Governor Chris Christie [official website] signed the Sports Gambling Law in January following its passage via referendum [JURIST report] in November, and it is expected to go into effect in the next two months. The plaintiffs contend that irreparable harm will be done to the sports industry if the state law is allowed to go into effect:
Amateur and professional sports are an integral part of American culture, particularly among the country's youth who often look up to athletes as role models. The sponsorship, operation, advertising, promotion, licensure, and authorization of sports gambling in New Jersey would irreparably harm amateur and professional sports by fostering suspicion that individual plays and final scores of games may have been influenced by factors other than honest athletic competition. As Congress recognized when it enacted PASPA, the proliferation of sports gambling threatens to harm the reputation and goodwill of Plaintiffs, and to adversely affect the way the public views amateur and professional sports. Plaintiffs cannot be compensated in money damages for the harm that sports gambling poses to the character and integrity of their respective sporting events. Once their reputation and goodwill have been compromised, and the bonds of loyalty and devotion between fans and teams have been broken, Plaintiffs will have been irreparably injured in a manner that cannot be measured in dollars.
In response Christie contended that New Jersey, in regulating sports gambling, is legalizing activity that goes on in every state regardless of the law [AP report] and that regulating gambling is federal overreach.

There is a presumptive prohibition on most forms of gambling in the US, although restrictions on some forms of Internet gambling were loosened late last year when the Department of Justice (DOJ) clarified that non-sports online gambling is presumptively legal [JURIST report]. JURIST Guest Columnist Patrick Fleming [official profile] argued that the decision bolstered the legitimacy of Internet betting [JURIST comment], yet the gambling landscape remains a patchwork of many distinct standards and statutory definitions. The DOJ has not commented on the recent New Jersey attempts to legalize sports gambling, nor whether they will take action against them in Federal court.




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New Zealand high court dismisses appeal in Abortion Supervisory Committee case
Sung Un Kim on August 9, 2012 1:05 PM ET

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[JURIST] The Supreme Court of New Zealand [official website] on Thursday rejected an appeal [decision, PDF] brought by anti-abortion group Right to Life [advocacy website]. The court upheld a Court of Appeal decision regarding the capacity of the Abortion Supervisory Committee [official website], the statutory body which oversees the country's abortion law and providers. The appeals court had ruled that the Committee does not have the authority to review or scrutinize the decisions of certifying consultants on abortion and form its own view about the lawfulness of their decisions to the extent necessary to perform its functions. On the other hand the court held that the Committee can seek information from certifying consultants about how they have generally approached their caseload. The court also stressed that the committee would have, under the Contraception, Sterilisation, and Abortion Act 1977 [text] the power of "keeping under review the operation of the provisions of the abortion law ... and of ensuring consistency of the administration of that law throughout New Zealand" and making inquiries into such from time to time, except on the basis of individual cases. In its ruling the court also concluded that it is now the responsibility of the Committee itself and perhaps also of the parliament to review whether the Act is operating as it should.

Abortion has been a controversial issue around the world. Earlier this month a Kansas judge refused to dismiss [JURIST report] a lawsuit challenging the state's new abortion clinic regulations after state officials asked that they be upheld without a trial. The law [SB36 materials] requires abortion providers to obtain an annual license and sets minimum requirements for staff members and buildings in which abortions are performed. In July the US District Court for the District of Kansas [official website] had issued [JURIST report] a preliminary injunction to block SB36. Also in July the US District Court for the District of Arizona [official website] declined to block [JURIST report] enforcement of a new Arizona abortion regulation [HB 2036 materials; JURIST report] that will ban abortions after 20 weeks unless there is a medical emergency. In May Turkish Prime Minister Recep Tayyip Erdogan [official website, in Turkish] called [JURIST report] for stricter regulations on abortions and Caesarean births in Turkey. In September voters in Liechtenstein rejected [JURIST report] a proposal to legalize abortion.




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$3 billion lawsuit filed against GM over Saab bankruptcy
Sung Un Kim on August 9, 2012 12:27 PM ET

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[JURIST] Netherlands-based sports car manufacturer Spyker NV [corporate website] on Monday filed a lawsuit [complaint, PDF] against General Motors (GM) [corporate website] in the US District Court for the Eastern District of Michigan [official website] seeking $3 billion in damages. Spkyer bought Saab Automobile AB (Saab) [corporate website] from GM in 2010 and now alleges that GM intentionally drove Saab into bankruptcy by tortiously interfering with a transaction with Chinese investors. According to the complaint GM knew that Saab would go into bankruptcy if it was not able to find investors to provide immediate liquidity. In 2011 Spyker, Saab and Zhejiang Youngman Lotus Automobile Co. (Youngman) [corporate website] negotiated agreements to aid Saab in avoiding bankruptcy, but GM refused to consent to the deals because Saab was still using GM's technology in their cars. In response Spyker, Saab and Youngman drafted a Framework Agreement that did not require GM's consent. However, GM issued a statement allegedly giving a false impression to the public that the agreement needed GM's approval, leading Saab ultimately to go bankrupt. Spyker announced that it will pursue the lawsuit [Guardian report] against GM with "the same tenacity and perseverance" as they tried to save Saab from bankruptcy. In addition to the stated $3 billion in damages Spyker also seeks pre- and post-judgment interest and attorneys' fees.

GM became a government-backed company in July 2009 when the US Bankruptcy Court for the Southern District of New York [official website] granted [JURIST report] the company's motion seeking the court's approval for sale of the automaker under US Bankruptcy Code Section 363 [11 USC § 363 text] to Vehicle Acquisition Holdings, a company set up by the US Department of the Treasury [official website] expressly to facilitate the sale. A few weeks earlier a federal bankruptcy judge approved [JURIST report] GM's motion to borrow $33.3 billion in debtor in possession financing from the US and Canadian governments to finance a new company. GM had filed [JURIST report] for Chapter 11 [text] bankruptcy in June of that year.




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Thailand court delays bail verdict for red shirt leaders
Sung Un Kim on August 9, 2012 11:48 AM ET

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[JURIST] A Thai court on Thursday postponed its verdict in the case against leaders of the "red shirt" [BBC backgrounder; JURIST news archive] movement for violating terms of their bail. The Criminal Court in Bangkok pushed back the date for the verdict [WP report] to August 22, stating that it will allow defendants to gather more evidence and add more witnesses to better prepare their case. Yoswarit Chooklom is one of the 24 red shirt leaders who are being tried on terrorism charges [AFP report] arising out of anti-government protests [JURIST news archive] in 2010 that killed more than 90 people and injured around 1,700. Political opposition accused Chooklom of having violated his bail terms by inciting protests [Bangkok Post report] and threats against the country's Constitutional Court judges in July. He also gave out home addresses and phone numbers of judges and their families to red shirt supporters but expressed regret urging supporters to refrain from calling the numbers. Jatuporn Prompan, another red shirt leader, is also on trial for speaking out at the same protest. Five of the protesters have since become lawmakers, giving them parliamentary immunity from the terrorism charges.

The current defendants were among the nine who were released [JURIST report] in February of last year amid organized peaceful rallies calling for the release of the remaining red shirt leaders. A month earlier the red shirts petitioned [JURIST report] the International Criminal Court (ICC) [official website; JURIST backgrounder] to launch a preliminary investigation into whether the government committed crimes against humanity during the 2010 protests. The application for petition [text, PDF] cited specific evidence developing a substantial basis to show that international crimes of murder, imprisonment and other severe deprivation of physical liberty, other inhumane acts and persecution were committed in conjunction with the suppression of red shirt protest. In 2010 the red shirts initiated the protests [JURIST report] against the Thai government calling for elections. The protests ended two months after when protesters surrendered [JURIST report] to the police.




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Libya interim council transfers power to newly elected assembly
Sung Un Kim on August 9, 2012 9:58 AM ET

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[JURIST] The National Transitional Council of Libya (NTC) [official website, in Arabic; JURIST news archive] on Wednesday transferred its power to the newly elected interim legislature. The transfer took place minutes after the 200 congress members were sworn in. With the end of the NTC and the beginning of the national assembly Libya has marked another step toward its democratic development since the Libyan conflict [JURIST backgrounder] and subsequent end of the Muammar Gaddafi [BBC backgrounder; JURIST news archive] regime. The United Nations welcomed the transition [UN News Centre report] and reiterated its support for Libya's democratic transition. NTC chief Mustafa Abdel Jalil stated [AFP report] that the handover of power to the 200-seat national assembly is an "historic moment" for Libya and regretted that numerous issues could not be solved while the NTC was in power, such as finding solutions for the refugee crises and successfully addressing security and disarmament issues. He also added that he is planning to retire as the NTC chairman and resign from the top panel of magistrates. The national assembly will soon assume the responsibility of drafting a new constitution for the country.

The national assembly was elected [CFR report] last month. The draft of the electoral law was finalized in February after the earlier version was revised [JURIST report] to address criticisms of the public. The finalized law provided for 20 percent of the 200 seats to be reserved for women, double of what was proposed in the earlier version. The UN Support Mission in Libya (UNSMIL) [official website] had welcomed [JURIST report] the new electoral law, commenting that the country is coming closer to a democratic society. Also in February the trial against Gaddafi allies was postponed [JURIST report]. The defense's pleading stated that the trial must be transferred to the civil court because the military court lacked the authority to rule on the issue. In January, Libya was criticized for the allegations of torture and human rights violations [JURIST report]. Although the NTC expressed its commitment to human rights and legal reformation, UN Security Council [official website] was still concerned due to the lack of NTC's control over the revolutionary brigades.




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DOJ argues continued attorney access at Guantanamo is government decision
Brandon Gatto on August 9, 2012 8:37 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday filed a brief [text, PDF] with the US District Court for the District of Columbia [official website] asserting that the government should decide when a Guantanamo Bay [JURIST backgrounder] prisoner is granted continued regular access to legal counsel absent a detainee's ongoing legal challenge. The issue for the court will be whether the 2008 US Supreme Court [official website] decision in Boumediene v. Bush [text] grants federal courts the authority to control habeas corpus petitions from foreign combatants in the custody of the US military. Upholding the position [CNN report] of the Department of Justice (DOJ) [official website] would allow military officials to determine on a case-by-case basis when detainees could challenge their detention. It would also provide Guantanamo's Navy base commander with sole veto power over attorney access to prisoner clients and access to classified material. While government lawyers have labeled the dispute as "important" yet "quite narrow," volunteer private attorneys contend that they should be afforded regular access to their imprisoned clients regardless of a habeas petition or other pending charge before the court. Chief Judge Royce Lamberth [official profile], who frequently decides prisoner appeals, will hear the case on August 17.

The DOJ is supporting its argument with Executive Order 13,567 [text], which was issued on March 7, 2011 and involves Periodic Review Boards (PRBs). PRBs are military panels in charge of deciding whether a petitioning prisoner should continue to be detained, as well as whether the prisoner is a national security threat. Specifically, the government contends that the order "does not provide detainees who undergo PRB review with a judicially enforceable right to counsel, or any justification for asking the Court to impose a counsel-access regime on the PRB process other than the one developed, per the Order's direction, by the Secretary of Defense." The case will require further interpretation of the Supreme Court's ruling in Boumediene [JURIST report], where it held that federal courts have jurisdiction to review habeas corpus petitions filed by Guantanamo detainees who have been classified as "enemy combatants."




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