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Legal news from Friday, September 14, 2012




Russia Supreme Court: gay pride parades not 'propaganda'
Michael Haggerson on September 14, 2012 3:04 PM ET

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[JURIST] The Supreme Court of Russia [official website, in Russian] upheld the Arkhangelsk region's ban on "gay propaganda" on Thursday, but ruled that gay pride parades and other demonstrations in support of gay rights are legal. According to the court, the ban applies only to direct appeals to minors to engage in homosexual activity [RIA Novosti report] and even then information about homosexuality can still be provided to minors as long as it is neutral in tone. The ban, which has been proposed to extend nationally, imposes a fine of USD $1,600 for "gay propaganda." Russian lesbian, gay, bisexual and transgender (LGBT) activist group Russian LGBT Network [advocacy website, in Russian] approved [press release, in Russian] of the ruling that merely having gay rights demonstrations was not illegal, but still disagrees with any assertion that homosexuality harms family values.

Russia has long struggled with the acceptance of homosexuality. In August LGBT activists brought suit over the Russian Justice Ministry's refusal to register Pride House [JURIST report] for the 2014 Sochi Winter Olympic Games. Also that month Russia's best-known gay rights activist Nikolay Alexeyev lost a court challenge [JURIST report] to Moscow's 100-year municipal ban on gay pride marches. He intends to appeal the decision to the European Court of Human Rights (ECHR), which has already ordered Russia to pay Alexeyev [JURIST report] an award of €12,000 for non-pecuniary damages plus €17,510 for costs and attorneys fees (USD $41,090 total) for rejecting his license application for a gay pride gathering. In March St. Petersburg announced that the city's governor had signed into law a bill that would impose fines against people convicted of promoting homosexuality, including gays or lesbians who are open about their sexuality. Individuals convicted under the law would be subject to fines between 3,000 and 5,000 rubles (US $100-160) [Moscow Times report], while organizations could be fined up to 50,000 rubles for "promoting" homosexuality. In December Senior Lecturer of Sociology at the University of Surrey Paul Johnson [university profile] wrote that the latest ban by Russian authorities on the promotion of homosexuality to minors is only the most recent violation of the ECHR ruling [JURIST comment] on the subject.




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Apple wins injunction against Motorola in Germany court
Michael Haggerson on September 14, 2012 2:00 PM ET

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[JURIST] Apple [corporate website; Bloomberg backgrounder] won an injunction against Motorola Mobility [corporate website; Bloomberg backgrounder] on Thursday in a German court due to patent infringement in Motorola's smart phones and tablets. The patent at issue, EP2126788 [text; European Patent Register materials] which corresponds to US Patent No. 7,469,381 [text], is for "rubber-banding" technology which allows users to continue scrolling beyond the end of a list and then have the list snap back. Its intent is to provide a more intuitive scrolling user interface [FOSS Patents report]. Apple can enforce an injunction [FOSS patents report] throughout Germany if it posts a €25 million bond. If Apple posts an additional €10 million it can have all of the offending phones and tablets destroyed and if it posts another €10 million Apple can get a recall on Motorola's offending products. Motorola also must pay damages to Apple for its past infringement. Motorola is expected to appeal the judgment and is also still seeking a revocation of the patent at issue from the European Patent Office [official website]. However, the judge's grant of the injunction indicates that he believes there is a low probability that Motorola will be successful in having the patent revoked.

Motorola has been very active in German courts both seeking to protect and asserting its intellectual property. In July a German court granted an injunction for Microsoft Corp. [corporate website] against Motorola in a patent infringement case over EP0618540 [JURIST report] which involved technology relating to common names for long and short file allocation tables. Also in July a German court dismissed a patent infringement suit by Microsoft Corp. over EP1304891 [JURIST report] which monitors different functions on a smartphone and provides such information to other applications utilizing them. Another case that was brought by Microsoft against Motorola Mobility involving a patent on system input methods is postponed to September 20. In February Apple sued Motorola in the US District Court for the Southern District of California [official website] seeking an injunction [JURIST report] to stop Motorola from bringing patent claims against Apple in Germany, alleging that the German suit violates a licensing agreement between Motorola and Qualcomm.




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Norway court upholds tobacco display ban
Rebecca DiLeonardo on September 14, 2012 12:26 PM ET

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[JURIST] A Norwegian court on Friday upheld a the country's display ban [text, in Norwegian] on tobacco products. The law prevents stores from displaying tobacco products or their logos anywhere in a store, requiring the products to be stored in cabinets or otherwise hidden from sight. Philip Morris [corporate website] brought suit against Norway in March 2010, arguing that the law is in violation of the European Economic Area (EEA) [official website] rules because it makes competition too difficult. An Oslo district court began hearing the case [JURIST report] in June. The district court, per a request by Philip Morris, asked for an advisory opinion by the court for the European Free Trade Agreement (EFTA) [official website] before the case went to trial. The EFTA court in turn responded that the display ban could be seen as violating EEA rules by interfering with the free flow of goods while on the other hand, the underlying policy of the ban was in compliance with EEA rules. Philip Morris has one month to appeal the district court's ruling.

Tobacco products have been subject to stricter regulations around the world, resulting in increased litigation over the legality of such measures. The US Court of Appeals for the District of Columbia Circuit ruled in August that tobacco companies do not need to print graphic warnings [JURIST report] of the dangers of smoking on cigarette packages. In a 2-1 decision, the DC Circuit struck down a Food and Drug Administration (FDA) regulation that requires tobacco companies to display graphic images such as a man smoking a cigarette through a hole in his throat. Earlier that month the High Court of Australia [official website] upheld a law that bans brand logos on tobacco products [JURIST report] and requires cigarette packages to display graphic warning images. In July the US Court of Appeals for the Second Circuit struck down [JURIST report] a New York City Department of Health regulation requiring stores to display graphic anti-tobacco ads where tobacco products are sold.




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Rights groups appeal to stop enforcement of Arizona immigration law
Rebecca DiLeonardo on September 14, 2012 11:49 AM ET

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[JURIST] A coalition of rights groups in Arizona filed an emergency motion on Thursday asking a court to block a controversial provision of Arizona's immigration law [SB 1070, PDF] until an appeal can be heard on the issue. The contested provision requires law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. A judge for the US District Court for the District of Arizona [official website] last week declined to issue an injunction against the provision [JURIST report], in light of the US Supreme Court [official website] ruling in Arizona v. United States [opinion, PDF; JURIST report] which upheld the provision. Among the rights groups involved in the suit are the National Immigration Law Center (NILC), the American Civil Liberties Union (ACLU) and the Mexican American Legal Defense and Education Fund (MALDEF) [advocacy websites].

Immigration law [JURIST backgrounder] has became a hot button issue over the past few years as many states, Arizona being the first, have passed laws giving state and local officials more power to crack down on illegal immigration. In August the US Court of Appeals for the Eleventh Circuit [official website] struck down [JURIST report] several provisions of Alabama's controversial immigration law [HB 56, PDF], upheld a few sections of the law and rejected part of Georgia's immigration law [HB 87, text]. That same month, the US Court of Appeals for the Third Circuit [official website] again heard arguments [JURIST report] on two anti-illegal immigrant laws enacted in 2006 by the city of Hazleton, Pennsylvania, which deny permits to businesses that employ illegal immigrants and fine landlords who extend housing to them. In July a judge for the US District Court for the District of South Carolina [official website] declined to lift an injunction [JURIST report] against South Carolina's controversial immigration law [SB 20 materials], despite the recent Supreme Court ruling. The lawsuit against the South Carolina immigration law was put on hold [JURIST report] in January pending the outcome of Arizona v. United States. Last May the ACLU and the National Immigration Law Center filed a class action lawsuit challenging Utah's immigration law, the same month that the ACLU filed a class action [JURIST reports] in the US District Court for the Southern District of Indiana [official website] challenging that state's immigration law.




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DOJ appeals injunction of indefinite detention law
Dan Taglioli on September 14, 2012 10:55 AM ET

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[JURIST] The US Department of Justice [official website] on Friday filed an appeal of this week's order by the US District Court for the Southern District of New York [official website] that permanently enjoined [opinion, PDF; JURIST report] a law allowing US authorities to detain indefinitely anyone suspected of having aided known terrorist organizations. Section 1021(b)(2) of the National Defense Authorization Act (NDAA) [text, PDF] affirms the authority of the president under the Authorization for Use of Military Force (AUMF) to detain indefinitely any "person who was a part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." The US Attorney's Office for the Southern District of New York [official website] filed for review of the ruling [Bloomberg report] of Judge Katherine Forrest, who struck down the law as vague and ambiguous in its terms and "unconstitutionally overbroad" in that it "purports to encompass protected First Amendment activities." Several civil rights groups have praised the court's decision and have circulated petitions [advocacy website] arguing that the government should not appeal the injunction.

Forrest issued an injunction against the law in May, and clarified in the following weeks that her injunction should be interpreted broadly [JURIST reports]. Lawyers for the government filed their appeal [JURIST report] with the US Court of Appeals for the Second Circuit [official website] in August. US President Barack Obama signed the NDAA into law [JURIST report] on December 31, 2011. Upon signing, he noted [statement], "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation." Both houses of Congress reached an agreement [JURIST report] on the language of the NDAA's most controversial sections in mid-December.




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Federal judge blocks congressional insider trading law
Dan Taglioli on September 14, 2012 10:33 AM ET

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[JURIST] A judge for the US District Court for the District of Maryland [official website] on Thursday blocked [opinion, PDF] the enactment of the Stop Insider Trading on Congressional Knowledge Act (STOCK Act) [S 2038, PDF]. Judge Alexander Williams, Jr. granted the plaintiffs' motion for a temporary preliminary injunction against the STOCK Act, which was designed to stop insider trading by members of Congress and other high-level federal employees. The law requires the online publication through a searchable database of sensitive financial information including the disclosure of assets, income, liabilities and financial transactions, including securities transactions of a certain amount. The court noted that the STOCK Act "is not the first financial disclosure scheme applicable to executive branch officials" and the government has a genuine "interest in deterring corruption and conflicts of interests." Williams nevertheless ruled in favor of the federal employees' right to privacy:
However compelling, these [government] interests are insufficient to vitiate Plaintiffs' showing of a likelihood of success on the merits. As elucidated earlier, the financial information the Act subjects to disclosure is quite sensitive. Furthermore, the data's publication portends substantial harm seeing that it stands to affect such a large swath of senior executives. The vehicle of disclosure, cyberspace, exacerbates these risks because it optimizes the accessibility and transferability of the information. Finally, the Act applies to many military, law enforcement, and diplomatic positions ... these positions may be acutely vulnerable to the misuse of such financial information. At this stage in the litigation, these interests outweigh the United States' compelling interest in combating conflicts of interest and corruption.
Williams based his decision solely on the plaintiffs' claim of a violation of their constitutional rights to privacy. However the federal employees also asserted claims for declaratory relief, violation of the Administrative Procedure Act [materials] and violation of due process, for which Williams noted the plaintiffs had made substantive arguments.

The STOCK Act was slated to take effect this month absent a judicial injunction. The challenge to the act was filed last month [JURIST report] on behalf of the senior federal executives and various professional organizations by the American Civil Liberties Union of the Nation's Capitol (ACLU) [advocacy website]. The complaint notes that the financial information at issue is "precisely the information that foreign intelligence services and other adversaries spend billions of dollars every years to uncover" and that the "complete personal financial information of all senior officials on the Internet would be a jackpot for enemies of the United States intent on finding security vulnerabilities they can exploit." President Barack Obama [official website] signed the STOCK Act into law in April [JURIST report], stating that the law ensures that the powerful are playing by the same rules as everyone else. The president further applauded the act as an essential step in subduing the power of money in politics. The legislation was originally introduced by Congresswoman Louise Slaughter [official website] in 2006.




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Washington high court rules sexual orientation discrimination law not retroactive
Sarah Posner on September 14, 2012 9:57 AM ET

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[JURIST] The Washington Supreme Court [official website] ruled [opinion, PDF] Thursday that the amended Washington Law Against Discrimination (WLAD) [materials], which now includes gays and lesbians, is not retroactive in its effect. The WLAD was amended in 2006 to protect gays and lesbians against discrimination. The plaintiff sued her superior at the University of Washington for discrimination based on sexual orientation. The court decided whether the WLAD applied retroactively, and whether pre-amendment and post-amendment acts by the defendant were admissible. The court held that the WLAD did not apply retroactively and the pre-amendment conduct was not admissible because it was not unlawful when it occurred. The court stated:
Because the WLAD amendment applies prospectively only, Loeffelholz cannot recover for acts that occurred prior to the amendment. To do so would hold the University liable for conduct that was not unlawful at the time it was committed. This would violate the core tenet of retroactivity jurisprudence that "individuals should have an opportunity to know what the law is and to conform their conduct accordingly."
The court remanded the case to determine the merits of the plaintiff's claim based on the acts of her superior post-amendment.

Sexual orientation discrimination remains a controversial issue. Last month an inn in Vermont settled [JURIST report] a discrimination case brought by a same-sex couple who was turned away from the holding their wedding reception at the inn because of the owner's views on same-sex marriage. Also in August the Gay & Lesbian Advocates & Defenders (GLAD) asked [JURIST report] the Supreme Court to review the Defense of Marriage Act (DOMA) [text; JURIST news archive], which denies federal recognition to same-sex marriages. In June a lawyer for a group of lesbian, gay, bisexual and transgender plaintiffs in Tennessee said that she would appeal [JURIST report] the decision of a Tennessee County judge dismissing a lawsuit challenging a controversial law. The suit challenged Tennessee's Equal Access to Intrastate Commerce Act (EAIC) which bars local governments from creating anti-discrimination laws that are stricter than those of the state.




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Pennsylvania high court hears arguments on voter ID law
Sarah Posner on September 14, 2012 8:28 AM ET

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[JURIST] The Supreme Court of Pennsylvania [official website] heard oral arguments on Thursday to determine whether Pennsylvania's voter ID law [HB 943 materials] is constitutional. On its first day in session, the high court heard oral arguments [AP report] to decide if the state's newly enacted voter ID law will take effect for the upcoming presidential election and whether this law threatens the right to vote. The law requires that all voters present a state issued or federal government issued photo ID when they vote. Those who do not have a valid photo ID can cast a ballot, which will be counted provided that they furnish a valid photo ID within six days. The case reached Pennsylvania's high court after an appeal [Bloomberg report] by the American Civil Liberties Union (ACLU) [advocacy website] from the lower court's ruling allowing the voter ID law to stand [JURIST report]. The ACLU along with 10 citizen plaintiffs brought this case against Governor Tom Corbett who signed the voter ID bill into law [JURIST report] in March. Lawyers in the case expect the court to rule by the end of September.

There are now 32 US states [NCSL backgrounder] that require voters to present some form of ID at the polls, but the issue remains controversial. Last month a three-judge panel in the US District Court for the District of Columbia unanimously rejected a Texas law [JURIST report] requiring voters to present photo ID to election officials before casting their ballots. In May the ACLU of Minnesota filed a petition [JURIST report] sought to eliminate a proposed ballot initiative that would amend the Minnesota Constitution to require citizens to present photo identification in order to vote.




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Egypt court sentences former PM to three years for corruption
Rebecca DiLeonardo on September 14, 2012 7:56 AM ET

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[JURIST] An Egyptian court on Thursday sentenced former Egyptian prime minister Ahmed Nazif to three years in prison after finding him guilty of corruption charges. Nazif was accused of embezzling $10.5 million while in office. This most recent conviction will add to a previous corruption conviction in which he was found to have illegally profited [AFP report] from a license plate agreement with a German business partner. Nazif served as prime minister under ousted Egyptian president Hosni Mubarak [BBC profile; JURIST news archive] from 2004 until 2011. He left office just before the 2011 uprising and was replaced by Ahmed Shafiq, who is also facing corruption charges [JURIST report] associated with his time in office.

Nazif is one of the many former politicians under Mubarak's regime who are facing corruption charges. Last week former culture minister Farouq Hosni was accused of illegally obtaining 27 million Egyptian pounds (USD $4.5 million) during his term as culture minister. In August the former secretary for Mubarak's political party, Safwat El-Sherif, was referred to a criminal court [JURIST report] on corruption charges. He was accused of having abused his office by obtaining real estate at discounted prices and illegally obtaining $49.2 million. In July an Egyptian court rejected pleas to release [JURIST report] Mubarak's two sons while they await trial. Their lawyer argued that his clients are detained unlawfully because they were arrested for a misdemeanor and not for a felony which would allow authorities to detain an individual only up to six months, a term that the Mubaraks already served. Gamal and Alaa Mubarak, along with seven others, were charged with stock market fraud [JURIST report] and using unfair trading practices and illegally manipulating the market.




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