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Legal news from Friday, September 28, 2012




Switzerland lawmakers reject burqa ban
Michael Haggerson on September 28, 2012 1:22 PM ET

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[JURIST] The Swiss Parliament [official website, in french] voted 93-87 on Friday against a bill which would ban burqas [JURIST news archive] and other face coverings in public places. Proponents of the bill argued that banning burqas would promote gender equality and improve national security. Those against the bill argued that it was an excessive measure because so few women in Switzerland wear burqas that it would unduly punish Swiss Muslims and that a ban would create a negative image of the country in the minds of Muslim tourists. The Swiss Senate decided to let individual cantons [swissinfo.ch report] choose how to address protesters that hide their faces.

Burqas and other symbols of Islam have been a controversial subject in Europe. In July the Netherlands announced that a ban on burqas would go forward [JURIST report] later this year. Proponents of the Netherlands ban said the purpose was to stop people from being able to commit crimes and remain undetected by concealing their identities and covering their faces. Belgium officially banned [JURIST report] burqas in July 2011. France's ban on burqas took effect [JURIST report] on April 11 2011. Swiss voters approved a proposal to ban the construction of minarets [JURIST report] in November 2009, and the vote was subsequently upheld [JURIST report] in the European Court of Human Rights [official website] in July 2011. Some commentators have suggested that the rationales behind the European burqa bans are weak [JURIST op-ed] and that the true purpose of the bills is societal discomfort.




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Bank of America settles class action suit over Merrill Lynch acquisition
Michael Haggerson on September 28, 2012 12:27 PM ET

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[JURIST] Bank of America (BOA) [corporate website] announced Friday that it has agreed to pay $2.43 billion [press release] to settle a class action lawsuit with investors over its $18.5 billion acquisition of Merrill Lynch [corporate website] in January 2009. Investors alleged that BOA failed to disclose information about Merrill and made misrepresentations about Merrill's financial health. BOA stated that it denied these allegations but chose to settle because it was in the best interests of its shareholders to avoid a lengthy and expensive legal battle. The proposed settlement will be reviewed by the US District Court for the Southern District of New York [official website]. As a part of the settlement, BOA has agreed to institute new corporate governance policies. Commentators stated that the settlement was unexpectedly large [Bloomberg report] given the historical context and that this and several other suits have been major hits to BOA.

BOA has had a contentious litigation history recently. In July BOA to pay $375 million [JURIST report] in a settlement with bond insurer Syncora Guarantee [corporate website] over claims that Syncora was misled into insuring toxic mortgage-backed securities of BOA-owned Countrywide Financial Corporation [NYT backgrounder]. Also that month a federal judge rejected [JURIST report] a motion by BOA to dismiss a shareholder lawsuit alleging BOA's purposeful concealment of the bank's exposure to billions of dollars in loan repurchase claims and its problematic reliance on an electronic loan registry. In December BOA reached a $315 million settlement of claims brought by investors alleging they were misled with respect to mortgage-backed investments, and a $335 million settlement [JURIST reports] with the Department of Justice, relating to discriminatory lending practices. In June 2011 BOA announced an $8.5 billion settlement [JURIST report] agreement arising from claims that it had sold bad securities that contributed to the housing market collapse.




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Panama legislature passes copyright law with heavy fines for violators
Dan Taglioli on September 28, 2012 11:02 AM ET

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[JURIST] The National Assembly of Panama [official website, in Spanish] on Wednesday approved a controversial new copyright law [bill 510, PDF, in Spanish] that allows authorities to fine infringers without a trial or civil lawsuit. The bill would grant broad powers to the Ministry of Commerce and Industry [official website, in Spanish; press release, in Spanish] to impose fines of up to USD $100,000 [AP report] on individuals found to be in unlawful possession of copyrighted material. Critics of the legislation contend [RT report] that it concentrates too much power in the executive and violates free speech principles. Bill 510 was passed as part of a package of legislation intended to facilitate enactment of the US–Panama Trade Promotion Agreement [USTR materials] approved by Panama in 2007 and signed into law in the US in October 2011. The bill will now go to the executive branch to be signed into law.

Copyright infringement is an international concern. In June two of the founders of of the file-sharing website The Pirate Bay (TPB) [website] filed appeals in the European Court of Human Rights (ECHR) [official website], challenging their convictions for copyright violations [JURIST report] in a Swedish court after the Swedish Supreme Court [official website] refused to hear their appeal [JURIST report] earlier this year. The Swedish Svea Appeals Court [materials] upheld [JURIST report] the convictions of TPB founders in November 2011. Also in June the US District Court for the Northern District of California [official website] ruledin favor of Google [corporate website] in the case of Oracle America, Inc. v. Google Inc. [case materials], holding that Google did not infringe patents and copyrights [JURIST report] held by Oracle [corporate website] when it used Oracle's 37 Java application programming interface (API) packages for its Android operating system. In May JURIST Guest Columnist Sandeep Kanak Rathod, an LLM Candidate at the University of Pittsburgh School of Law, explored differences in copyright law in the US and India [JURIST comment], contrasting the judicial tests used in each country when courts evaluate infringement claims.




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UN rights body extends mission of independent panel in Syria
Rebecca DiLeonardo on September 28, 2012 10:50 AM ET

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[JURIST] The UN Human Rights Council [official website] on Friday passed a resolution [press release] extending the mission of the UN Independent International Commission of Inquiry (COI) [official website] in Syria. The panel of independent experts is charged with investigating the human rights situation in the country amidst the prolonged and violent conflict between government and opposition forces. The COI last week testified before the Human Rights council that human rights violations in Syria were increasing in severity and number [JURIST report]. Chair of the COI Paulo Pinheiro stated that both sides of the Syrian conflict are committing war crimes and that government forces are committing crimes against humanity. He said that the government was using regular bombing of residential neighborhoods via both artillery shelling and airstrikes and mechanized infantry to clear out anti-government groups. The Human Rights Council extended the mission of the COI for one year.

More than 20,000 people have died [Reuters report] in the violent conflict in Syria. Pinheiro said that there was no military solution to the crisis and some members of the Security Council have called for the matter to be forwarded to the International Criminal Court and for sanctions to be levied against Syria. The COI released a report [text, PDF] in August concluding that the Syrian government was committing serious human rights violations [JURIST report]. The report found that government and Shabbiha forces are responsible for instances of rape, murder, torture and attacks against civilian populations. The report further concluded that the Syrian government was responsible for the deaths of more than 100 civilians, including women and children, in Al-Houla in May. They Syrian government had previously denied involvement in the massacre [JURIST report]. The COI had previously released an inconclusive report [JURIST report] in June suggesting that the government may have played a role in the deaths at Al-Houla.




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UN report: drug trafficking threatens rule of law in Central America, Caribbean
Rebecca DiLeonardo on September 28, 2012 10:23 AM ET

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[JURIST] Drug trafficking and violent crime in Central America and the Caribbean threaten the rule of law in those regions, according to a report [text, PDF; press release] released Thursday by the UN Office of Drugs and Crime (UNODC) [official website]. The report concluded that cocaine trafficking and the associated violence are the main source of the threat. The UNODC expressed concern that addressing drug trafficking and violence through the use of increasing police presence could further threaten the rule of law by eroding civil rights and displacing organized crime to neighboring nations. The report called on nations in the region to coordinate an international effort to reduce crime, strengthen infrastructure and gain public confidence in law enforcement. It also recommended that the UN provide supplementary law enforcement and advisers to assist the region in developing a strong rule of law.

UN officials have repeatedly expressed concern about international drug trafficking and its affects on government stability. In July the UNODC launched its global awareness-raising campaign [JURIST report] with the purpose of informing the public about the economic costs and human impact associated with the threat transnational organized criminal networks are creating. The UN-backed body estimated that the illegal profits gained by the organizations represent "more than 6 times the amount of official development assistance, and are comparable to 1.5 per cent of global GDP, or 7 per cent of the world's exports of merchandise." In February UN Secretary-General Ban Ki-moon [official profile] called for an increase in efforts to curb transnational organized crime [JURIST report], drug trafficking and piracy in West Africa. In an address to the UN Security Council [official website], the Secretary-General said he was "particularly concerned about reports stating that terrorist groups, such as Al-Qaida in the Islamic Maghreb, have formed alliances with drug traffickers."




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Arizona to appeal federal injunction on portion of state immigration law
Dan Taglioli on September 28, 2012 9:57 AM ET

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[JURIST] Lawyers for Arizona Governor Jan Brewer [official website] on Thursday announced the state's plan to appeal a preliminary injunction currently blocking the provision of the controversial Arizona immigration law [SB 1070, PDF] that criminalizes the harboring and transportation of illegal immigrants. The part of the law in question makes it illegal to transport, shield or harbor an illegal immigrant [Reuters report] within Arizona borders, creating a separate crime for someone who is violating any other law while also transporting or harboring such an illegal individual. The provision would also make it a crime to encourage or induce someone [Arizona Daily Star report] to illegally come to or live in the state. The SB 1070 provision in question was enjoined earlier this month [JURIST report] by the US District Court for the District of Arizona [official website] in light of the US Supreme Court [official website] ruling in Arizona v. United States [opinion, PDF; JURIST report], in which most of the law's provisions were declared unconstitutional. District Judge Susan Bolton issued the injunction on federal preemption grounds after hearing arguments [JURIST report] on the law in August. In the same ruling Bolton upheld the SB 1070 provision that 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. Arizona's official appeal has not yet been filed in the US Court of Appeals for the Ninth Circuit [official website].

Last week Brewer's lawyers and the US Department of Justice (DOJ) [official website] presented Bolton with a joint filing suggesting wording for the court order [JURIST report] permitting police to enforce the SB 1070 "show me your papers" provision. Immigration law [JURIST backgrounder] has became a hot button issue as many states have passed anti-immigration laws modeled on Arizona's. 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] 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 Supreme Court's ruling in Arizona.




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