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Legal news from Thursday, July 15, 2010




US Senate sends financial reform legislation to Obama
Dwyer Arce on July 15, 2010 3:38 PM ET

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[JURIST] The US Senate [official website] on Thursday voted 60-39 [roll call vote] in favor of comprehensive financial reform legislation [HR 4173 materials; JURIST news archive], sending it to President Barack Obama [official profile]. The vote on the Restoring American Financial Stability Act of 2010 occurred after Democrats garnered the support [The Hill report] of Republican Senators Scott Brown (MA), Olympia Snowe (ME) and Susan Collins (ME) [official websites], securing the 60 votes needed to end debate. The legislation creates a new regulatory council to monitor financial institutions in order to prevent the companies from becoming "too big to fail" and will establish a new consumer protection division within the Federal Reserve [official website] to enforce rules against abusive business practices. It also gives the Federal Reserve the power to supervise the largest financial companies and report to the government any risks the firms may pose to the economy at large. The government will have the ability to seize and liquidate failing financial institutions before their collapse can have an adverse economic effect, and the bill permits banks to invest only 3 percent of their capital into hedge funds or private equity funds. The bill also creates regulations for the trading of derivatives. Shortly after the Senate vote, Treasury Secretary Timothy Geithner [official profile] praised the reform package [press release], stating:
[The bill is] the strongest financial reform[] this country has considered since the Great Depression. ... [The] reforms will restore the banking system to its core purpose of helping Americans save for their future and channeling those savings to the entrepreneurs with the best ideas for building a stronger America. These reforms will allow the government to make sure that [banks] do not threaten the health of the economy as a whole.
Just before the Senate vote, House Minority Leader John Boehner (R-OH) [official website] called for the law's repeal should it pass. In a statement [text] released after the bill's passage, he explained why this was necessary:
[The bill] makes bailouts permanent, enshrines 'too big to fail' into law, and fails to reform the government mortgage companies that sparked the meltdown by giving high-risk loans to people who couldn't afford it, and it needs to be fixed. House Republicans offered a better solution to stop the Democrats' permanent bailouts, reform Fannie Mae & Freddie Mac, and protect taxpayers and help small businesses create jobs.
Obama is expected to sign the bill [NYT report] next week.

Two weeks ago, the House of Representatives [official website] voted 237-192 [JURIST report] to approve the financial reform bill. The House and Senate reconciled their versions of the bill [JURIST report] last month but were forced to re-open negotiations, eventually removing a $17.9 billion tax on large financial institutions that was meant to cover the bill's costs. The Senate approved its version of the bill in May, after the House passed its version [JURIST reports] in December. The legislation closely mirrors a proposal put forth by the Obama administration [JURIST report] last June consisting of a broad series of regulatory reforms aimed at restoring confidence in the US financial system following the recent economic crisis [FT backgrounder; JURIST news archive]. Financial reform represents a cornerstone of Obama's legislative agenda since taking office in 2009, along with health care, immigration reform, climate change legislation, and the repeal of "Don't Ask Don't Tell" [JURIST news archives].




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Kyrgyzstan establishes commission to probe ethnic violence
Dwyer Arce on July 15, 2010 2:28 PM ET

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[JURIST] Kyrgyz interim President Roza Otunbayeva [Telegraph profile] on Thursday issued a decree establishing a commission to investigate last month's ethnic violence [Guardian backgrounder] against the country's Uzbek population. The commission is comprised of 30 former government officials [VOR report], human rights activists and professors, headed by former parliament speaker Abdygany Erkebayev. It will consult with government and international experts and present its findings [AP report] on the causes and repercussions of the violence in September. The decree comes one week after Human Rights Watch (HRW) [advocacy website] reported that the Kyrgyz government requested that the Organization for Security and Co-operation in Europe (OSCE) [official website] conduct an international inquiry [press release] into the violence. HRW urged OSCE to include the role of the Kyrgyz security forces in instigating and perpetrating the violence during the investigation, in addition to their conduct in the aftermath. On Wednesday, HRW called for an end to the torture [press release] and detention of Uzbeks believed to have been involved in the violence and urged the Kyrgyz government to abide by national and international law during the investigation.

The Kyrgyz government announced Friday that it has opened more than 1,000 criminal cases [JURIST report] stemming from the recent violence. Regional officials in Osh, an area in southern Kyrgyzstan, announced that 106 individuals had already been detained [ITAR-TASS report]. The violence resulted from a clash between the Kyrgyz majority and the Uzbek minority and official estimates place the death toll at 309, with an additional 2,000 reportedly injured. Property damage estimates exceed $71 million. The interim government extended a curfew and state of emergency [UPI report] in the area until August. A new constitution took effect in Kyrgyzstan earlier this month after it was approved by voters [JURIST reports] in a nationwide referendum. In June, the interim government under Otunbayeva announced the referendum to reform the country's constitution would occur despite the ethnic violence [JURIST report] in Osh. The constitution was originally approved by the interim government [JURIST report] in May. The June rioting in Osh followed violent protests in the capital city of Bishkek in April that resulted in former President Kurmanbek Bakiyev being removed from office [JURIST report].




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ICTR defense lawyer shot dead
Drew Singer on July 15, 2010 2:10 PM ET

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[JURIST] A senior defense lawyer at the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] was shot dead outside of his home Tuesday night. Police say Jwani Mwaikusa [Martindale profile] was killed [BBC report], along with his nephew and neighbor, and that the attackers then ransacked Mwaikusa's car, taking a briefcase and some documents. Mwaikusa worked as a defense counsel for former businessman Yussuf Munyakazi, who was convicted [judgment summary; JURIST report] earlier this month on charges of genocide and extermination as a crime against humanity. Rwandan authorities had sought to have Munyakazi transferred to Rwanda for trial, but that request and the subsequent appeal were both denied [JURIST report] based on Mwaikusa's argument that his client couldn't get a fair trial there, because the judiciary in Rwanda may not be fully independent and immune from outside pressure. Mwaikusa lived outside of Tanzania's main city of Dar es Salaam, where he also taught law at the University of Dar es Salaam [official website]. It is unclear whether the shooting is related to Mwaikusa's work with the ICTR, as five people in Dar es Salaam have been shot dead by armed robbers in the last two months, a higher number than normal.

This is not the first instance of an ICTR defense lawyer facing hostilities. Last month, US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] returned to the US Tuesday after spending 21 days in a Rwandan prison. Erlinder was arrested [JURIST report] on charges that he denied the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. He was in Rwanda to prepare his defense of opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], who was arrested in April [JURIST report] on similar charges. Erlinder had pleaded not guilty [JURIST report]. Demanding Erlinder's release, more than 30 ICTR defense lawyers issued a joint statement [JURIST report; text] last month, threatening a boycott. According to the statement, Erlinder's arrest indicated a growing threat to the country's legal system, because, "anyone who is involved in the defence of an accused person - be they counsel, investigator, assistant or Defense witness - runs the same risks and is exposed to the same threats of being criminally categorized as a 'negationist' as defined in Rwandan legislation."




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Democratic fundraiser sentenced to 12 years for Ponzi scheme
Hillary Stemple on July 15, 2010 1:57 PM ET

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[JURIST] Former Democratic Party fundraiser Hassan Nemazee was sentenced Thursday to 12 years in prison after pleading guilty in March to charges of bank fraud and wire fraud relating to his orchestration of $292 million pyramid scheme. The federal judge for the US District Court for the Southern District of New York [official website] also ordered Nemazee to pay $292 million in restitution to the banks that were the targets of the fraud. Nemazee spoke prior to the sentencing, stating that he takes responsibility for his crimes [WSJ report] and blaming his conduct on pride and arrogance. Nemazee had previously admitted to using forged documents [Bloomberg report] in order to borrow from banks, starting in the 1990s. He originally pleaded not guilty [JURIST report] last September after being indicted [text] on three counts of bank fraud and one count of aggravated identity theft. If the case had gone to trial, Nemzaee could have faced up to 30 years in prison for each charge of fraud. Nemazee, who was a fundraiser for Barack Obama, Hillary Clinton and other prominent Democrats, was ordered report to prison by August 27.

In May 2009, disgraced Democratic Party fundraiser Norman Hsu [JURIST news archive] was convicted [JURIST report] on charges of violating the Federal Elections Campaign Act (FECA) [text]. Hsu was accused of making illegal campaign contributions in other peoples' names in violation of the FECA. According to the indictment [JURIST report], Hsu also allegedly pressured clients to donate to his preferred democratic candidates and threatened to cut them off if they did not comply with his wishes. In September 2007, New York prosecutors charged [JURIST report] Hsu with orchestrating a $60 million Ponzi scheme in connection with the same events. Hsu pleaded guilty [NYT report] to those fraud charges in May. The FBI arrested Hsu in Colorado on federal charges of unlawful flight to avoid prosecution after Hsu failed to appear for a bail hearing in California on unrelated fraud charges on September 5, 2007. Hsu formerly raised funds for political candidates, including Clinton. Clinton agreed to return $850,000 she received from Hsu when news of the charges became public.




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DC appeals court rules against same-sex marriage vote
Dwyer Arce on July 15, 2010 1:35 PM ET

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[JURIST] The District of Columbia Court of Appeals [official website] on Thursday ruled [opinion, PDF] 5-4 that the DC Charter was not violated when city officials refused to allow a ballot initiative on same-sex marriage [JURIST news archive]. The court, affirming a ruling [JURIST report] of the Superior Court of the District of Columbia [official website], found that DC's Human Rights Act (HRA) did not violate the DC Charter [texts] right to public referendum when it disallowed referendums on laws that would be discriminatory under the HRA. The appellants argued that the Charter, which acts as the district's constitution, allows public referendums on all legislative issues excepting appropriations and so the HRA exemption is invalid. Alternatively, they argued that a public referendum to bar the city from recognizing same-sex marriage would not be discriminatory. The court rejected both arguments, finding that the proposed ban would be discriminatory under the HRA due to its express prohibition on discrimination based on sexual orientation. The court also found that the ability of the Council of the District of Columbia [official website] to regulate what could be put to a vote under the Charter was ambiguous, requiring deference to the Council. Additionally, the court held, the Council could not have intended to allow issues of discrimination to go to a referendum because it approved both the HRA and the referendum amendment in the same legislative session. The dissenting judges agreed with the appellants, finding that the Council exceeded its authority under the Charter by seeking to restrict the right to referendum. In reacting to the decision, Human Rights Campaign (HRC) [advocacy website] stated that it represented a "significant victory for justice, the rule of law and the protection of all D.C. residents against discrimination" and that individual civil rights should not be subject to referendums [press release].

In May, the court heard arguments [JURIST report] after the Superior Court denied Reverend Harry Jackson's request to allow a vote on a measure defining marriage as between a man and a woman. The case was heard en banc by all nine judges of the appeals court, instead of the three-judge panels that usually hear cases. The ruling affirmed a November decision by the District of Columbia Board of Elections and Ethics [official website], which held that putting the act to a public vote would violate the HRA. DC began recognizing same-sex marriages in March after the US Supreme Court [official website; JURIST news archive] denied an emergency appeal to block the law from taking effect, joining Massachusetts, Connecticut, Iowa, Vermont and New Hampshire [JURIST reports] in recognizing same-sex marriage.




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Gambia court sentences 8 to death for roles in 2009 coup attempt
Hillary Stemple on July 15, 2010 12:54 PM ET

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[JURIST] A Gambian court on Thursday sentenced eight men—six former army officers and two former high-ranking government officials—to death for their roles in a 2009 coup attempt. The men were charged in March [JURIST report] with conspiring to overthrow the government of President Yahya Jammeh [official website]. The men were found guilty of treason [BBC report] after the prosecution was able to sufficiently show that they had obtained arms and troops from Guinea in order to oust the government. In his closing statement, the state's chief prosecutor urged the court to set an example [AFP report] with the men in order to prevent future instability in the country. The men will have 30 days to appeal their convictions and sentences.

The Jammeh administration was also the target of a coup attempt in 2006 that resulted in 10 military officers being jailed [BBC report] for threatening to overthrow the government. Critics contend that Jammeh maintains stability in the Gambia by suppressing any signs of dissent. In March, an opposition official complained of frequent incidents of indefinite detention [BBC report] of citizens, including government officials, without charges being filed. In February, Gambia ordered an envoy [Afrol report] from UNICEF [official website] to leave the country. Last September, Jammeh threatened to kill human rights workers [Newstime Africa] who threatened to destabilize his regime.




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ICC orders release of Congo militia leader Lubanga, pending appeal
Hillary Stemple on July 15, 2010 11:55 AM ET

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[JURIST] Trial Chamber I of the International Criminal Court (ICC) [official website] on Thursday ordered the release [press release] of accused Congolese militia leader Thomas Lubanga Dyilo [case materials; JURIST news archive]. The announcement comes one week after the court suspended [press release; JURIST report] Lubanga's trial, stating that the trial could not proceed until the prosecution obeyed the judge's orders to disclose specific information to the defense. In ordering Lubanga's release, the ICC said that because the trial had been suspended, Lubanga could not be held indefinitely based on the assumption that his trial might resume at some point in the future. Lubanga's trial was suspended on the basis that he could not receive a fair trial until the defense received information about the identity of a witness known as "intermediary 143." The court previously indicated that the prosecution might be sanctioned under Article 71 of the Rome Statute [text, PDF] for not complying with the court's ruling, but the court stated Thursday that sanctions will not be issued at this time. During its session, the court also granted the prosecutions leave to appeal the court's decision to stay the proceedings. Lubanga will remain in custody pending an appeal of the court's decision ordering his release.

Lubanga is accused of war crimes for allegedly recruiting child soldiers to fight in the Democratic Republic of the Congo (DRC) in 2002-2003. His trial began in January 2009 but was halted soon after when one of the child witnesses recanted his testimony [JURIST report] that Lubanga had recruited him for the militia. The prosecution concluded its case [JURIST report] last July after presenting 22 weeks of testimony. Lubanga maintains he is innocent [JURIST report] of the charges against him. He became the first war crimes defendant to appear before the ICC, formed in 2002, after he was taken into custody [JURIST report] in March 2006.




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Nine states file amicus brief supporting Arizona immigration law
Hillary Stemple on July 15, 2010 10:43 AM ET

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[JURIST] Michigan Attorney General Mike Cox (R) [official website] filed an amicus curiae brief [text, PDF] Wednesday on behalf of nine states in support of Arizona in a lawsuit filed earlier this month [complaint, PDF; JURIST report] by the US Department of Justice (DOJ) [official website], seeking to permanently enjoin Arizona's controversial immigration law [SB 1070 materials; JURIST news archive]. The DOJ's complaint claims that the law is preempted by federal law and therefore violates the Supremacy Clause [text] of the US Constitution. In their amicus brief, the states, including Texas, Florida and Pennsylvania, contend SB 1070 is not preempted by federal law unless the statute consists of a regulation of immigration or unless it conflicts with federal law so that the objective of the federal law cannot be achieved as intended by Congress. The states argue that SB 1070 does not constitute a regulation of immigration and that it does not conflict with, but rather supports federal immigration law. The states also maintain that Congress intended for there to be cooperative enforcement of immigration laws and that the DOJ seeks to supplant the cooperative scheme with a system where the federal government chooses which laws to enforce. Cox, announcing the filing of the brief, condemned the DOJ lawsuit [press release], stating, "Arizona, Michigan and every other state have the authority to enforce immigration laws, and it is appalling to see President Obama use taxpayer dollars to stop a state's efforts to protect its own borders." The Arizona legislation was signed into law [JURIST report] in April and is set to take effect July 29.

The Arizona law criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally. It has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling. Earlier this month, the American Bar Association (ABA) [official website] filed an amicus curiae brief [JURIST report] urging the federal district court in Arizona to block the enforcement of the state's immigration law. The brief was filed in support of a class-action lawsuit [JURIST report] led by the American Civil Liberties Union (ACLU) [advocacy website]. The Mexican government has also filed an amicus curiae brief [JURIST report] supporting the ACLU suit, claiming a substantial interest in ensuring its "bilateral diplomatic relations" with the US remain "transparent, consistent and reliable, and not frustrated by the actions of individual US states." The government also claims an interest in ensuring that its citizens are "accorded human and civil rights when present in the US in accordance with federal immigration law." Brewer is also currently facing federal lawsuits filed by the National Coalition of Latino Clergy and Christian Leaders and several Tuscon police officers [JURIST reports], who claim they cannot properly implement the law without racially profiling.




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Last US-run detention facility transferred to Iraqi control
Dwyer Arce on July 15, 2010 10:32 AM ET

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[JURIST] The US military on Thursday transferred control over Camp Cropper [JURIST news archive] to Iraqi authorities as US troops prepare to withdraw from the country next month. Despite the transfer, the US will maintain advisers and inspectors [CNN report] in the detention facility to respond to any allegations of prisoner abuse and will still hold 200 prisoners, including eight high-ranking officials from the regime of Saddam Hussein [JURIST news archive] in a part of the camp called Compound 5. US military officials expressed their confidence [AP report] in the ability of the Iraqi forces to live up to human rights standards in managing the 1,600 prisoners held at the camp and stressed that even those prisoners still held by the US were under Iraqi jurisdiction. Iraq's justice minister announced Wednesday that 26 Saddam-era officials had been transferred [JURIST report] from US to Iraqi custody. The prisoner transfer, from Camp Cropper to Kadhimiya prison in Baghdad, included former foreign minister Tariq Aziz [BBC profile; JURIST news archive], former interior minister Mohammed Zumam and former oil minister Amir Mohammed, and followed the transfer of 29 other former officials 10 months ago. According to his lawyer, Aziz fears for his life [AP report] while in the custody of the current Iraqi government and plans to appeal to the Vatican to intervene on his behalf.

In March, the US military transferred Camp Taji prison [JURIST report] to Iraqi authorities. The US began to scale back its Iraq detention facilities in September when Camp Bucca [JURIST news archive] in southern Iraq was closed [JURIST report] pursuant to the Status of Forces Agreement [text, PDF]. According to the agreement, all US troops must be withdrawn from Iraq by the end of 2011, and the US must release all prisoners or transfer them to the control of Iraqi authorities. The Iraqi government must have arrest warrants or detention orders to accept transferred prisoners into Iraqi facilities, otherwise risking release. A fourth US-run prison, Abu Ghraib [JURIST news archive], was transferred back to Iraqi control [JURIST report] in 2006. The Iraqi government has recently faced criticism for its treatment of prisoners from Human Rights Watch (HRW) [advocacy website]. In April, the rights group claimed that Iraqi detainees were repeatedly tortured [JURIST report] in a secret prison in Baghdad.




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Argentina Senate passes same-sex marriage legislation
Dwyer Arce on July 15, 2010 9:21 AM ET

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[JURIST] The Argentine Senate [official website, in Spanish] on Thursday voted 33-27 to legalize same-sex marriage [JURIST news archive], making Argentina the first Latin American nation to do so. The legislation, which includes adoption rights for same-sex couples, was approved after 14 hours of debate [BBC report]. President Cristina Fernandez [official website, in Spanish] has expressed her support for the bill and is expected to sign it upon her return from abroad. The legislation faced strong opposition from some lawmakers who introduced an alternative bill that would have allowed civil unions nationwide without adoption rights. The bill also faced strong opposition from the Catholic Church [official website], which organized protests outside of the capitol building that gathered more than 60,000 people [AP report]. Cardinal Jorge Mario Bergoglio [official website] criticized the legislation, stating that it interfered with a child's right to be raised by a mother and father. Freedom to Marry [advocacy website], a US-based same-sex marriage advocacy group, described the passage as a "human rights achievement" [press release] demonstrating Argentina's movement to "true democratic values." Recent polling has shown that 70 percent [NYT report] of the Argentine public support the legislation.

In May, the Argentine Chamber of Deputies [official website, in Spanish] voted 126-109 in favor [JURIST report] of the bill after 12 hours of debate. The legislation has been under consideration since last year, with more than 50,000 marching in support [JURIST report] of it last November. In September, Uruguay approved a bill granting adoption rights to same-sex couples [JURIST report] and currently is the only country in the region to offer civil unions nationwide. Same-sex marriage is recognized in jurisdictions in Mexico and the US, and is recognized nationwide in Canada, Belgium, the Netherlands, Spain, Portugal, Sweden, Norway, Iceland and South Africa [JURIST reports].




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House committee approves measure restricting offshore drilling permits
Hillary Stemple on July 15, 2010 9:04 AM ET

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[JURIST] The US House Committee on Natural Resources [official website] on Wednesday approved an amendment [press release], as part of a broader piece of legislation [HB 3534 materials] that would bar new offshore drilling and gas permits to any company with a history of violating environmental or workplace safety laws. Under the amendment, any company that has, during the previous seven years, incurred fines of $10 million under the Clean Air Act or Clean Water Act [materials] or has had more than 10 fatalities at any of its facilities would be barred from drilling in US waters. The amendment would also hold companies responsible for the health and safety record of any of their subsidiaries or successor companies, in order to prevent corporate reorganization to avoid the regulations. The proposed legislation would apply to all drilling companies, but would immediately bar British Petroleum (BP) [corporate website] from receiving drilling permits due to the 11 fatalities related to the recent Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. Congressman George Miller (D-CA) [official website] proposed the amendment to encourage corporate responsibility among oil companies. He singled out BP as an example of a company in need of reform, stating:
[M]any companies are proud of their safety and environment records, and demonstrate a commitment to good behavior. They are the model for what my Amendment seeks to achieve. It is regrettable that BP is a company with extensive violations and no history of working to mend its ways. Unable to change on its own, my amendment would require BP, and any other company like it, to become a responsible actor or lose access to the valuable offshore assets that belong to the American people.
The House Energy and Commerce Committee [official website] is expected to begin discussion on similar legislation [HR 5626 materials] on Thursday.

US Interior Secretary Ken Salazar [official website] on Tuesday issued a new six-month drilling moratorium [text, PDF; JURIST report] that prohibits deepwater drilling with certain technologies, citing new evidence regarding safety concerns after the BP oil spill. The new moratorium was issued after a federal judge placed a preliminary injunction against the original moratorium [JURIST reports] implemented by the Obama administration in May. The Department of Justice (DOJ) [official website] appealed the ruling [JURIST report] arguing that the district judge abused his discretion in issuing the injunction and that another deepwater spill could overwhelm the ongoing efforts to clean up the spill with catastrophic results. The US Court of Appeals for the Fifth Circuit [official website] denied [JURIST report] the DOJ's request last week. More than 120 million gallons of oil have leaked already from the rig's broken pipe and has now surpassed the Exxon Valdez oil spill [JURIST news archive] as the worst in US history.




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eBay sued for $3.8 billion in patent infringement case
Ann Riley on July 15, 2010 8:16 AM ET

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[JURIST] Connecticut company XPRT Ventures LLC filed suit [complaint, PDF] Tuesday against eBay [corporate website] in the US District Court for the District of Delaware [official website], claiming the infringement of six patents [materials] for online auctions and payment systems. According to the complaint, which also names PayPal, Bill Me Later, Shopping.com and StubHub [corporate websites] as defendants, XPRT alleges [press release] that eBay misappropriated information shared in confidence by the inventors of XPRT's patents and incorporated it into eBay's existing payment systems. Additionally, eBay allegedly filed a subsequent patent application [text] with the US Patent and Trademark Office (USPTO) [official website] incorporating the concepts of XPRT's patents and trade secrets. XPRT seeks a minimum of $3.8 billion in damages for eBay's unjust enrichment and the lack of compensation to the inventors and patent holder, based on the estimated value of the patents.

Recently, eBay has been scrutinized for various intellectual property infringements. In April, a federal appeals court ruled [JURIST report] that eBay is not required to actively monitor its website for the sale of counterfeit goods. The US appeals court ruling marked a dramatic contrast with other recent rulings in Europe. In February, the Paris District Court [official website, in French] ordered [JURIST report] eBay to pay LVMH Moet Hennessy Louis Vuitton (LVMH) [corporate website] 200,000 euros (USD $275,000) in damages for paying search engines to direct customers to counterfeit LVMH products. In a separate case in September, the European Court of Justice (ECJ) [official website] issued an advisory opinion against LVMH [JURIST report] in its suit to collect damages from Google for Google's AdWords system, which allows companies and individuals to purchase advertising space when a user searches for a product or brand name. In 2008, a French court ordered eBay to pay LVMH USD $63 million [JURIST report] for failing to prevent the sale of counterfeit luxury goods.




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